Friday, October 18, 2019

Rick's Dismissal WITH PREJUDICE - Court Documents

Highlight of Judges Words 
Case No. 2:09-cr-00302 Judge Clark Waddoups 

...Though the allegations if proven would indeed be a serious offense, the court observed in July 2012 that in light of the significant problems relating to the indefiniteness of the information contained in the indictments, prosecutors seem to be arguing, by virtue of their pursuit of these allegations, that allegations that would cause a complaint to “fail on its face in a civil action should be sufficient in a criminal case to put a person in jeopardy of his liberty and money.” 

The court stated, at that time, that it was “having trouble seeing how [Defendant is] supposed to prepare [his] defense based on the indefiniteness of this indictment,” a concern that has not been alleviated for the court in the intervening two years since the July 2, 2012 hearing 

In fact, this problem with the allegations upon which the indictments have been based has become even more pronounced following the suppression of the February 2009 interviews and all fruits in the investigation derived therefrom in August 2013. (Order dated Aug. 1 

It seems clear that the information obtained in those interviews became “integral” to the original indictment, both directly and because it guided investigators and prosecutors in their further investigation. (See id. at 10.) The court must also regrettably agree with Defendant’s argument that the Government’s actual problematic conduct in prosecuting this case (as observed by the court in several previous Orders) should be a relevant consideration in considering both the seriousness of its allegations against Defendant and the actual and presumed prejudice caused to Defendant, as discussed below. 

…several instances of questionable ethical conduct in prosecuting this case—weigh in favor of dismissal with prejudice. 

Defendant establishes beyond question that the Government and the court have together failed “to protect the speedy trial rights of both the defendant and society”…

…these are also symptomatic of the Government’s pattern of neglect and dilatory conduct…

The unique facts and circumstances of this case, … justify dismissal based on the dilatory conduct and pattern of neglect exhibited by the Government…[and] “prejudice is presumed,”…as well under these facts and circumstances because they undermine Defendant’s possibility of receiving a fair trial. 

As the Eleventh Circuit has held, dismissal of an indictment for government misconduct can be appropriate where there is a “demonstration of actual prejudice, or a substantial threat thereof, or a pattern of widespread and continuous misconduct.” United States v. Ballivian, ...The facts and circumstances of this case...reveal such “actual prejudice, or a substantial threat thereof, or a pattern of widespread and continuous misconduct.” addition to this administratively dilatory conduct and pattern of neglect, the court has already found significant problems with the substantive prosecution of this case essentially amounting to “a pattern of widespread and continuous misconduct.” 

This “pattern” unfortunately began even before the original indictment,...

***…as this court has previously noted in finding that...the posture of the Government toward Defendant had shifted from investigatory to prosecutorial by February 2009 (even though Defendeant had not yet been technically indicted by that time).” 

The government also refused to admit that it had relied upon Defendant’s attorney-client privileged information in obtaining the initial May 26, 2009 indictment. And it continued to use Defendant’s privileged information even after it promised to sequester it, specifically incorporating that information into the superseding indictment filed November 10, 2009. Moreover, prosecutors and investigators refused to admit they knew Defendant was represented in February 2009, when they schemed to interview him ex parte

The court agrees that the discovery practice of the Government in this case has been puzzling…

***Defendant has tried in vain since that time to obtain information from the Government about what the basis of its prosecution will be…And only after the hearing on this current Motion to Dismiss … has the Government produced an additional 1,400 pages of supplemental discovery to Defendant. 

“Most of the evidence was between one and four years old, and clearly has been in the government’s possession for a long time. There was no explanation for the late production, no description of the content, no table of contents, and no index.” 

The court also acknowledges that it has found that the Government had inappropriately based the superseding indictment in substantial part on attorney-client privileged information. … The court found this troubling at the time but viewing it now in the context of this case’s five-year prosecution history, it fits into a larger pattern justifying dismissal with prejudice. 

Finally, and most egregiously, the court has already written at length about the Government’s tactic of illegally planning and conducting impermissible ex-parte interviews with Defendant in February 2009 when he was represented by counsel, thus violating his due process rights, interfering with his attorney-client privilege, and inquiring into or attempting to interfere with his advice of counsel defense…

…the Tenth Circuit has observed that the right to counsel is essential “to secure the fundamental right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment.” Thus, “when the state becomes privy to confidential communications because of its purposeful intrusion into the attorney-client relationship and lacks a legitimate justification for doing so, a prejudicial effect on the reliability of the trial process must be presumed. Such a presumption is justified because “no other standard can adequately deter this sort of misconduct,” and “‘prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.’” 

The substantive prosecution of this case, in light of this broader prejudice context …essentially amounts to “a pattern of widespread and continuous misconduct” … and also justifies dismissal with prejudice…

The court fails to see how it can allow a reprosecution… 

It is, unfortunately, true that, as Defendant argues, “[t]he Court granted the motion to suppress ‘[to] prevent the erosion of citizens’ faith in the even-handed administration of the laws.’” 

It goes without saying that this protracted nature of the case—a federal prosecution extending over five years and cycling through a dozen Assistant United States Attorneys, following a state prosecution with substantial overlap, relating to allegations now a decade in the past 

However, “prejudice is presumed, as well under these facts and circumstances because they undermine Defendant’s possibility of receiving a fair trial. 

The prejudice he has suffered has been legal, personal, and real. 

Witness memories are already proving severely impaired (Agent Marker for example has already testified twice that he remembers little of several critical communications he had back in 2007 and 2008) 

Personally, Defendant has been under pre-trial release conditions for five years. This includes being deprived of his Second Amendment rights, the abridgment of his First Amendment rights to associate freely, and his general ability to live, work and raise his family. He has faced financial ruin, family issues, and health issues as a result of being subject to the abuse of process and misconduct by stewards who hold the overwhelming resources of the federal government. These are not small things and with the passage of time, the prejudice grows. 

…this instance, is another violation of law by federal prosecutors who, through the pattern and conduct of this case, have been strikingly unwilling to confirm [sic] their own conduct to the Constitution… To allow the government a fourth chance to re-indict would be unjust, unjustified, and a tacit form of tolerating this kind of prosecutorial misconduct. 

The prosecution’s approach, relying on a privileged document and violating rules of professional conduct and due process, has fundamentally compromised this case and is certainly prejudicial to Defendant.

… Defendant has already established how the government intentionally intruded on his constitutional rights and attorney-client relationship to secure an indictment in the first instance.” 

For the reasons discussed above, the court GRANTS Defendant’s Motion to Dismiss for Impermissible Delay (Dkt. No. 426) with prejudice. All other pending motions on the docket are thereby mooted and this case is closed. 

SO ORDERED this 14th day of August, 2014.

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Rick's Dismissal WITH PREJUDICE - Court Documents

Highlight of Judges Words  Case No. 2:09-cr-00302 Judge Clark Waddoups  ...Though the allegations if prov...