Misconduct in an Iran sanctions case by federal prosecutors out of the U.S. Attorney's Office for the Southern District of New York illustrates the institutional rot at the DOJ.
The U.S. Attorney’s Office for the Southern District of New York (SDNY) — which covers Manhattan and is arguably the most prestigious prosecutor’s office in the nation — recently got caught with its britches down, first trying to “bury” exculpatory evidence in a botched Iran sanctions case, then attempting to avoid responsibility after the fact.
As detailed in a Feb. 23 report by the AP’s Joshua Goodman, top federal prosecutors at SDNY admitted in unsealed text messages that they “lied” about the delayed release of an important document to defense attorneys for Ali Sadr Hashemi Nejad, an Iranian banker accused of violating U.S. sanctions by trying to route $115 million to Iran via a construction project in Venezuela.
In March 2020, a federal jury found Sadr guilty on five counts related to conspiracy, bank fraud, and money laundering. Sadr faced “a maximum of 125 years in prison,” according to Goodman, and was to be sentenced in August.
But by June, Geoffrey Berman, then U.S. Attorney for the SDNY, was asking federal Judge Alison J. Nathan to dismiss the case due to his office’s screw-ups.
In a letter to the court, Berman wrote, “[T]he Government has determined that it would not be in the interests of justice to further prosecute this case.”
Nathan dutifully dismissed the case and launched an investigation into the prosecutors’ actions. She ordered the SDNY to respond to written questions under oath. Prosecutors did this, asking that their declarations and exhibits involving internal discussions be kept under seal.
But in an order filed in late Feb., Nathan refused the prosecution’s request, ruling that “accountability and reform can also come from sunlight.” She ordered all materials released to the public, noting that the “prosecutorial misconduct in this case is of exceptional public interest.”
The judge also chastised prosecutors for actions that “raised serious concerns about the conduct of the Government,” including a “Brady violation” during the trial. (“Brady” refers to the Supreme Court precedent in Brady v. Maryland, requiring prosecutors to turn over “materially exculpatory evidence” to the defense.)
As laid out by Goodman, the government’s text messages and emails provide “a detailed look at how the case against Sadr began to unravel in the span of a few, turbulent hours last March as the trial was nearing completion.”
On a Friday night, a bank record surfaced that the line prosecutor, Assistant U.S. Attorney Jane Kim, wanted to introduce as evidence. But she realized she hadn’t yet shared it with Sadr’s attorneys, a potential violation of rules intended to ensure a fair trial.
Kim initially suggested turning it over immediately to the defense. But a colleague, Assistant U.S. Attorney Stephanie Lake, recommended they “wait until tomorrow and bury it in some other documents.”
The trick didn’t work. Sadr’s attorneys identified the document as new within an hour. They complained to prosecutors, saying the document — a letter from Commerzbank to the U.S. Treasury Department’s office charged with enforcing sanctions — would’ve helped in their defense.
The prosecutors, believing the document had no exculpatory value to the defense, then made up an excuse, telling the attorneys they thought the record had been previously produced.
The texts between SDNY supervisors are revealing. In one exchange, Emil Bove, co-head of the Terrorism and International Narcotics Unit, characterized one prosecutor’s immediate response to the defense as a “flat lie.”
In another text string, a supervisor complains of a bureaucratic “bloodbath” to come as a result of the Brady violation, admitting that the office had “lied” in a letter to the court.
Nathan ultimately chose not to sanction prosecutors, stating in her decision that she did not believe “that any of the prosecutors knowingly withheld exculpatory information or intentionally misrepresented facts to the court.”
Still, the judge criticized the prosecution for “grave derelictions of prosecutorial responsibility” and its “systemic disregard of their disclosure obligations.”
Nathan urged a full investigation into the matter by the DOJ’s Office of Professional Responsibility, pointing out that other lapses had since been revealed, such as law enforcement’s misuse of state warrants in the case.
The lack of supervision and communication “suggests broader institutional failure,” she wrote, adding that in the court’s view, “only institutional reforms can ensure these mistakes are not repeated.”
The Lie Next Time
Goodman quotes a legal ethics professor from NYU law school, lamenting that if these extralegal shenanigans can happen “in what many lawyers consider the nation’s premier prosecutorial office” then, “where can’t it happen?”
Along these lines, in Sep., Front Page Confidential (FPC) discussed a study released by the National Registry of Exonerations that claims prosecutorial misconduct by the feds is widespread and pervasive.
“In fact, every single federal white-collar exoneration with official misconduct includes misconduct by a prosecutor,” states the report.
Prosecutorial misconduct in federal white-collar crimes is increasing, argues the study, more than doubling in frequency since 2002. The report’s author, University of Michigan Law School Professor Samuel Gross, told FPC in an interview last year that there is “every reason to believe that exonerations are only a small fraction of convictions of innocent people.”
Sadr’s case is now part of the national exoneration registry.
Of course, the feds don’t need to “cheat” in court. Federal prosecutors enjoy enormous advantages over defendants, such as the power of a federal grand jury and the limitless resources of the federal government.
And, to further kneecap the defense, prosecutors can seize all of a defendant’s assets, as has happened in the case of award-winning journalists Michael Lacey and Jim Larkin, the founders of this publication and the former owners of Backpage.com.
Anyone who’s followed the Lacey/Larkin case is aware of the government’s disturbing tactics: from destroying the most important piece of evidence in the case, the Backpage website, to allegations of misleading the grand jury, to successfully demanding the return of exculpatory, internal DOJ memoranda, released by accident to the defense.
The Backpage and Sadr cases are symptoms of a larger sickness. As the exoneration study demonstrates, bad behavior by government attorneys is pervasive, and it is rarely punished.
So it should come as no surprise that federal prosecutions almost never end well for a defendant. In 2019, the Pew Research Center reported that only 2% of all federal criminal cases go to trial, while 90% of defendants pleaded guilty, with 8% of all cases being dismissed.
Pew also noted that fewer than 1% of all defendants charged in U.S. district courts with felonies or serious misdemeanors go to trial and win.
Prosecutors enjoy immunity from civil suits and normally are disciplined only in cases involving extremely egregious behavior.
Yet, this impunity seems to fly in the face of a prosecutor’s primary responsibility.
And according to the American Bar Association, that responsibility is not “merely to convict,” but, “to seek justice within the bounds of the law.”