Yesterday Judge Alison Nathan of the Southern District of New York, issued a scathing decision calling for an investigation in procedures and systems in the US Attorney’s office for the Southern District of New York. The basis for the judge’s opinion was the dismissal of the criminal case and conviction in US v. Ali Sadr Hasemi Nejad due to the DOJ’s repeated violations of Brady v. Maryland, which requires prosecutors to turn over any evidence in their possession which tends to exculpate the defendant.
The unusual case had the government abandoning a prosecution it had already won, after disclosures that federal prosecutors and agents had failed to turn over evidence that could have helped Mr. Nejad mount a defense. The defendant was arrested in 2018 and tried in March 2020, in the middle of the covid pandemic.
More than three months after the trial, and two years after the indictment, the U.S. Attorney’s office revealed an email exchange where one prosecutor suggested, in the middle of trial, that they might “bury” a document in a stack of other papers they were giving Sadr’s lawyers. Authorities had told the court the paper was not, in fact, buried because they handed it over less than 24 hours later.
Nejad had been accused of violating American sanctions laws against Iran by moving millions of dollars in payments for his family business through the U.S. financial system. The criminal case against him could have had serious implications for his liberty and his immigration status. Critical to the proof in these cases is that the defendant knew that he was dealing with entities that had Iranian connections in violation of the sanctions law.
Hidden from the defense were two key items: (a) the method the FBI used to obtain the defendant’s emails, which apparently violated the Fourth Amendment; and (b) emails that tended to show that the defendant would have reason to believe the transaction were legal and not funneling money to Iran-related entities. The court found that it appeared that the first issue was caused by SDNY prosecutors knowingly making false representations during the arguments on the defendant’s motion to suppress the evidence. The smoking gun came in regards to the second issue when various emails revealed an intent to hide or obfuscate the existence of the Brady material. When an AUSA had suggested turning it over “stat” another responded:
“[I]’m wondering if we should wait until tomorrow [a Saturday, by the way] and bury it in some other documents.”
The AUSA then agreed and took the plan further by proposing documents along which it could be buried when disclosing it to the defense. Specifically, she replied, “that’s fine too—some of the [Financial Action Task Force] stuff,” referring to another exhibit. Later in that chat, the AUSA noted that the Government “need[ed] to come up with some explanation for why the defense is just seeing this for the first time . . . .”
So they exchanged it on a Saturday in the middle of a bunch of other documents the defense had already had alleging the exchange was to get the defense to agree to their authenticity so they could be admitted into evidence. But the defense caught on and recognized the document as something that had not been turned over and was in fact critical to the defense. The defense objected on the following Monday and the AUSA said that they had believed that it had been turned over as part of a production made by Commerz Bank in response to a government subpoena. Not wanting to delay the trial further as the City was in the process of shutting down due to covid, the court allowed the trial to move forward and said it would conduct a hearing after the verdict to assess what happened. The defendant was convicted, and the court scheduled the hearing requiring prosecutors to turn over their emails about the document.
The emails not only revealed the plan to “bury” the document but also revealed that one AUSA had said: “Among other difficulties with doing that is the fact that I don’t know that it was ever produced to defense (it’s
not in the Commerzbank subpoena production).” This statement proved that the court had been lied to that the AUSA had believed it was turned over in that same subpoena production. To their credit, though the judge in her opinion called the document clearly exculpatory, the emails show that the AUSAs believed the document to be helpful to their case, not exculpatory. One AUSA even emailed” How could we have missed this?” That may prevent them from being sanctioned.
The defense moved for a new trial and with the consent of the government vacated the defendant’s conviction. The government then moved to dismiss the entire case with prejudice.
The court railed against the office and its practice and procedures noting that fourteen prosecutors had worked on this case including four on the trial team. That much personnel meant no consistent handling of the case and no one with ultimate responsibility for the case’s handling. She demanded that at a forthcoming hearing to determine if sanctions are warranted that each of the prosecutors who touched the case respond to a series of questions she drafted about the document and the exchange. She also required every – that’s right every- AUSA in the SDNY to read the decision. The court noted that in US v. Pizarro, the criminal case Judge Nathan tried right before this one, the government “also seriously breached its Brady obligations.”
It seems worth noting, though I am not suggesting necessarily any correlation, that unlike many SDNY judges, Judge Nathan was never an AUSA. She went from a Federal clerkship to clerking for Justice Stevens on SCOTUS to private practice to White House counsel under Barack Obama.
The SDNY has until the end of October to file its answers to Judge Nathan’s questionnaire. Judge Nathan included in her opinion a quote from a 1935 Supreme Court case Berger v. United States:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done . . . . He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
She then went onto make a strong but necessary statement:
The Government in this case has failed to live up to these ideals. The Court has recounted these breaches of trust, proposed some systemic solutions, urged referral to the Office of Professional Responsibility for admitted prosecutorial failures apparent in the existing record, and ordered further fact-finding. The cost of such Government misconduct is high. With each
misstep, the public faith in the criminal-justice system further erodes. With each document wrongfully withheld, an innocent person faces the chance of wrongful conviction. And with each unforced Government error, the likelihood grows that a reviewing court will be forced to reverse a conviction or even dismiss an indictment, resulting in wasted resources, delayed justice, and individuals guilty of crimes potentially going unpunished.
The Court thus issues this Opinion with hopes that in future prosecutions, the United States Attorney for the Southern District of New York will use only “legitimate means to bring about a just” result. Id. Nothing less is expected of the revered Office of the United States Attorney for the Southern District of New York. That Office has a well- and hard-earned
reputation for outstanding lawyers, fierce independence, and the highest of ethical standards. The daily work of the prosecutors in that Office is critically important to the safety of our community and the rule of law. Those who stand up in court every day on behalf of that Office
get the benefit of that reputation—but they also have the responsibility to maintain it.
Follow me on Twitter @oscarmichelen