Miami federal prosecutors stand accused of spying on the defense – this time in the case of an alleged $28-million, international sweepstakes fraud.
As described in court papers, the “invasion of the defense camp” appears to have begun in February when one of four defendants in the case cut a secret plea deal with the U.S. Attorney’s Office and began working undercover.
The informant, John Leon of Wilton Manors, participated in defense team strategy sessions for three months as a government “mole,” obtaining documents and listening to privileged discussions about witnesses and other sensitive defense matters and reporting back to the government, the documents say.
The fallout: defense accusations that the case has been irretrievably “tainted” due to constitutional violations of the attorney-client privilege.
“For a period exceeding two months, Leon, acting as a government informant with the government’s acquiescence, invaded the defense camp where he learned critical defense strategies by actively participating in numerous meetings, after already accepting a government plea and agreeing to cooperate,” say court papers filed by attorneys Marc Nurik of West Palm Beach, J. David Bogenschutz of Fort Lauderdale and Marshall Dore Louis of Miami.
The judge ... has sided so far with the defense. On Aug. 3, after an initial hearing, he ordered the government to turn over to the defense all “rough notes” of interviews of Leon by Internal Revenue Service agents who helped build the government’s fraud case. The defense had sought the agents’ notes, contending the government had “carefully sanitized” memos of interviews with Leon produced to the defense.
Wednesday, October 26, 2016
After Monday's post, I received an email tip with the following case of alleged spying, which is the third time it is alleged that the prosecution has invaded the defense camp. This one is from the summer but it is still being litigated. From the Florida Bulldog:
Tuesday, October 25, 2016
Oh, this is such a South Florida story -- about a billion dollar bond. Paula McMahon has the details:
When a South Florida man's friend sent him photos of a $1 billion bond earlier this year, investigators said, Michael Ifrah quickly pronounced it was genuine.
Ifrah wrote back to his pal that "the bond was real and it was more real than any other bond in the world," federal prosecutors said.
But that assurance was about as credible as the counterfeit bond, prosecutors told a judge Monday in federal court in Fort Lauderdale.
"This case is about two defendants trying to cash an unbelievable amount of money — a $1 billion bond. Few people have actually seen a billion-dollar bond, and that is because these bonds do not legally exist," prosecutor Daniel Cervantes wrote in court records.
Monday, October 24, 2016
This time, the case is before Judge Scola. But it's another Howard Srebnick case involving the DOJ Fraud section from DC. (You remember the last time this issue came up with the copy service). This time the government allegedly searched a defense team's war room. Srebnick's 32-page motion is here. The introduction summarizes truly outrageous conduct:
On October 3, 2016, only six weeks prior to the scheduled trial date, the government executed a post-indictment search warrant at a location that the prosecution team knew was being used exclusively by the defense team as a satellite law office or litigation “war room” for trial preparation. Even after defense counsel cautioned the prosecutor that she was jeopardizing the integrity of the prosecution by invading the defense camp, she nevertheless directed government agents to proceed onward. Refusing to provide the defendants or their attorneys a copy of the warrant, agents entered the space, seized and boxed up documents and electronic data that the defense team had itself generated and was reviewing and using to prepare for trial. In effect, the post-indictment search stripped the defense naked and paralyzed a significant component of the defense.I mean, this is getting ridiculous already. Let's see how this plays out.
Perhaps more troubling, government agents became exposed to substantial defense work product, including records that revealed defense strategies. Government agents observed which documents were deemed relevant by defense counsel and consultants. Government agents observed how the defense was preparing for trial. The government’s decision to utilize a search warrant to circumvent discovery and trial procedures contemplated by the rules of criminal procedure – see, e.g., Rules 16 and 17, Fed. R. Crim. P. – resulted in a quagmire of its own creation.
This unprecedented post-indictment invasion of the defense camp, which has disrupted trial preparation and given the government access to insider information about defense strategy, warrants dismissal of the Superseding Indictment. Alternatively, the Court should, at a minimum, a) suppress and order the return of all records seized; b) disqualify the prosecution team from further participation in this case; c) prohibit the government’s review of any materials until a procedure for determining privilege is established; and d) order other and further relief that may be appropriate after an evidentiary hearing.
Thursday, October 20, 2016
Kudos to Judge Scola for dismissing this case (order here) based on speedy trial grounds and to defense lawyer Sam Rabin for raising the issue. We need more judges who are willing to check the government's overreach. The Herald covers it here:
The judge noted that prosecutors filed the indictment more than six years after Tamas Zafir's role in the alleged crime of washing drug proceeds ended in 2009, then let another year pass before he could surrender on the charges in July.
This week, U.S. District Judge Robert Scola said Zafir's constitutional right to a speedy trial was violated because prosecutors delayed his prosecution while they sought the extradition of the main defendant, Nidal Ahmed Waked Hatum. He was arrested in Bogota, Colombia, in May but has yet to be extradited to Miami.
The U.S. attorney’s office wanted to prosecute Zafir and Waked together, leading to the long delay of Zafir’s trial, according to court records.
Waked is a wealthy and well-connected businessman based in Panama who owned a textile company in Miami-Dade and employed Zafir as its manager. The company, Star Textile Manufacturing, which shut down in 2009, had an account with Ocean Bank in Miami.
Zafir’s defense attorney, Sam Rabin, showed the judge that the government had ample opportunity to arrest Waked because he made 19 international flights from Panama to Canada, Panama to China, and Panama to Colombia, where he was finally arrested earlier this year. As a result of the delay in Waked’s arrest, Rabin argued his client was deprived of his right to a speedy trial.
The judge agreed, saying in his order: “The court finds that, based on the record, the reasons for the delay in arresting Zafir — a delay inextricably linked to the delay in arresting Waked — weigh heavily against the government.”
Scola also noted so many years had passed since Zafir shut down the Miami business, Star Textile, that was allegedly involved in laundering drug money from Panama.
“Zafir is now sixty-eight years old and without business records to rely upon, [he] would be hard pressed to remember details from more than seven years ago to present a defense in the case,” the judge wrote.
Read more here: http://www.miamiherald.com/news/business/article109276942.html#storylink=cpy
Wednesday, October 19, 2016
The guidelines called for 14-17 years, and the 11th reversed because there wasn't enough explanation regarding the 30-year sentence for the following facts. Via Paula McMahon:
A former cruise ship worker who sexually assaulted and tried to kill a passenger told a judge Tuesday that he is having a tough time dealing with the violence he sees every day in prison.
Ketut Pujayasa, 31, has already served 2 ½ years in federal prison for what prosecutors said was an extraordinarily cruel and violent attack on the woman during a cruise that left Port Everglades in February 2014.
Pujayasa admitted he used his master key to sneak into the woman's room, hid on her balcony until she fell asleep and then unleashed an astonishingly brutal assault on her.
The Valentine's Day attack went on for 30 to 60 minutes and included choking her with electrical cords, hitting her with objects from the cabin and trying to throw her into the ocean from the balcony of the moving ship, according to court records.This time, the judge imposed the same sentence with quite a bit more explanation:
He said the extra punishment was appropriate because Pujayasa's actions were so extreme and the effect on the victim was so severe, leaving her with post-traumatic stress disorder, obsessive-compulsive disorder, depression and physical and cognitive difficulties caused by her injuries.
Pujayasa will be deported when he is released and would be barred from returning to the U.S.
Pujayasa told investigators he wanted to punish the woman because he believed she had insulted his mother when he tried to deliver breakfast to her room on the Holland-America Line cruise.
He claimed the woman said "son of a bitch" after he knocked three times. The Indonesian native, who worked on cruises for several years, said he thought she was insulting his mother.
He fumed about it for hours and looked for her on the deck of the weeklong nudist cruise, planning to punch her in the face. When he spotted her, he said there were too many other passengers on deck so he changed his plan.
Seventeen hours after the perceived slight, he used his master key to let himself into her room, hid on her balcony and fell asleep waiting for her to return. The woman later wrote that she woke up to a "human shadow trying to kill me with his bare hands."
Prosecutors said the woman only survived the lengthy, brutal attack — which they described as "torture" — because she had unusual physical strength from her training as an aerial acrobat and gym teacher. The woman, who lives in the U.S., filed a civil suit and reached a confidential settlement with the cruise line last year.
Pujayasa, who had never been in any kind of trouble before, apologized again in court, though the victim did not attend his second sentencing.
"I am deeply sorry for all my actions," Pujayasa told the judge, speaking through a court interpreter.
He said he had never hurt anybody before but was incensed by what he considered an insult to his mother, describing her as the person he loves most in the world.
"[Pujayasa] still does not understand that words do not justify these kinds of actions," the judge said.
If the victim said what Pujayasa claimed she said, the judge explained to Pujayasa that it was not intended to besmirch his mother: "She stated a fairly common expression when you stub your toe or get awakened in the night."