When Prosecutors Fight (with Each Other)

Ours is a system of dual sovereignty, which means that an individual or company can be prosecuted for the same offense by both state and federal criminal law enforcement agencies absent a state-enacted bar to multiple prosecutions. See Nathan, IB: Multiple Jeopardy ' Concurrent State and Federal Prosecutions for the Same White-Collar Offense. Business Crimes Bulletin (December 2005). Approx-imately half the states have enacted such bars, but not all of these have expressly prohibited a state prosecution following a federal conviction. Defense counsel must first check whether the state has such a bar. Assuming that a plea is inevitable, in a broad-prohibition state defense counsel obviously should negotiate any plea agreement with federal authorities.

However, if the defendant is not in a broad-prohibition state, then any defense strategy has to take into account the risk of dual prosecutions. Where the federal and state authorities are likely to cooperate (most typically with the state prosecutors deferring to the federal prosecutors), a target probably has little room to maneuver. But when the local dynamic is such that federal and state prosecutors are inclined to fight over a case, especially a high-profile one, the client can be the beneficiary.

If his client can offer helpful testimony, then the defense attorney has a bargaining chip whose value increases in direct proportion to the intensity of the prosecutorial catfight. One approach is to put the client's cooperation on the bidding block and let market forces go to work. However, ultimately, the defense attorney must be in a position to assure the client that the loser in the bidding war will not indict anyway. Optimally, a condition of cooperation should be that the winning bidder obtain a binding commitment from the loser not to bring charges. If the prosecutors are fighting with each other this may not always be possible.

One strategy, not for the fainthearted, is to bargain for either transactional or use immunity with the prosecutors offering the best terms and gamble that the competing prosecutors will be unable to bring charges untainted by the immunized testimony. Transac-tional immunity bars a prosecution for the conduct to which the immunized testimony relates. Use immunity bars the direct or indirect use by prosecutors of the testimony itself to prosecute the immunized witness, other than for giving perjured testimony under the immunity grant. If federal prosecutors grant use immunity to a cooperating witness, then no state prosecutor can use in any way that testimony to prosecute the witness. Conversely, a grant of immunity by state prosecutors has the same impact on federal prosecutors. In New York, for example, any witness testifying in the grand jury automatically receives transactional immunity. See N.Y. Crim. Proc. L. ” 50.10 & 20; 190.40, which is treated like use immunity in any federal prosecution. See United States v. DeSalvo, 26 F.3d 1216, 1221 (2d Cir. 1994) ('testimony given under a state grant of transactional immunity earns only use immunity in a federal court.').

Assume that a defense attorney can obtain from a state law enforcement agency a misdemeanor plea without prison while federal prosecutors insist on a felony plea with a prison term. The defense attorney could negotiate a deal that includes putting his client in the grand jury, in effect, giving him an 'immunity bath.' Regardless of which type of immunity a witness receives from state authorities, federal prosecutors are barred from filing charges in any way tainted by the immunized testimony; indeed, they cannot even use the immunized testimony to pursue leads against the immunized witness. This strategy banks on what the Supreme Court terms the 'heavy burden' prosecutors must meet to bring charges untainted by the immunized testimony, Kastigar v. United States, 406 U.S. 441, 461-62 (1972). Indeed, in any Kastigar challenge to a prosecution, the prosecutors must affirmatively prove that their charges were wholly independent of the immunized testimony.

The strategy is a gamble because federal prosecutors can and do bring charges untainted by state immunized testimony. The strategy works best where, despite interagency animosity, the state and federal prosecutors are sharing information at some level, and therefore the defense has reason to believe that the immunized testimony will at least indirectly permeate the federal investigation. It may also have prospects for success where the immunized testimony is likely to be heard in the public domain, either because the witness gives immunized testimony at a public proceeding, or where there are leaks of the immunized testimony to the press. In that circumstance, federal prosecutors will be challenged to demonstrate that their charges were untainted by the immunized testimony. See United States v. North, 910 F.2d 843 (D.C. Cir. 1990) (vacating conviction of Oliver North because his immunized, widely publicized Congressional testimony, inter alia, refreshed the recollections of government witnesses at his criminal trial).

After the Fight Begins

Assume that the state prosecutors, to get a jump on the federal prosecutors, indict first, and the federal prosecutors are not far behind. If the strategy favors keeping the case limited to the federal prosecution, the best option may be to let the prosecutors fight, although the outcome may be pyrrhic. In the WorldCom case, for example, the Oklahoma Attorney General deferred his charges following a meeting between the two offices that the U.S. Attorney characterized as a 'frank and productive discussion,' a phrase foreign diplomats use when they mean confrontational and angry. But, in the end, following Ebbers' conviction and 25-year sentence, the Oklahoma Attorney General announced that he would not pursue charges.

On the other hand, if the strategy is to keep the case confined to the state system, the defense counsel's best option may be to remind the federal prosecutor of the so-called 'Petite Rule' from a Supreme Court case where the Solicitor General represented that the United States has a policy against 'multiple prosecutions' that was 'closely related to that against duplicating federal-state prosecutions.' Petite v. United States, 361 U.S. 529 (1960). The Petite Rule requires that three substantive circumstances exist before the DOJ brings a federal prosecution following a state conviction: 1) whether a substantial federal interest is involved in the case; 2) whether the state prosecution vindicated that outcome; and 3) whether the federal prosecutors have sufficient evidence to obtain and sustain a conviction. See Dual and Successive Federal Prosecution Policy, U.S. Attorneys' Manual ' 9-2.031 (2005).

The Petite policy confers no rights on a defendant who has been convicted in state court and now faces a possible federal prosecution. Nonetheless, where possible, defense counsel can and should argue to the federal prosecutors that the Petite policy prerequisites have not been met and, on that basis, decline to bring a follow-on prosecution.

Open Warfare

Occasionally, battles between prosecutors become so pitched and ferocious as to create potential defenses and witnesses for the defense. Such a war broke out in the Abscam prosecutions of six Congressmen and a Senator in the early 1980s. The investigation, and most of the indictments, was handled by federal prosecutors in Brooklyn. The officials they indicted included a mayor, a Congressman and a U.S. Senator from New Jersey. As a federal judge later said, the New Jersey prosecutors were 'jealous of the obvious importance and success of the investigation ' Once it became apparent that the New Jersey U.S. Attorney's office would play a minor role in these major investigations, the [NJ AUSAs] took a negative view of everything about Abscam.' One New Jersey AUSA told a Brooklyn federal prosecutor, 'I hope the whole thing blows up in your face.' As the District Court observed, the New Jersey federal prosecutors 'acted as if they had convinced themselves that the highest duties of a prosecutor were to manufacture arguments for the defendants,' and 'almost obstructed the investigation.' United States v. Myers, 527 S. Supp. 1206, 1246-47 (E.D.N.Y. 1982).

The defense attempted to exploit the prosecutorial battle by claiming that the Abscam investigation violated the defendants' due-process rights and by obtaining discovery, including the 'confidential government memoranda' written by the New Jersey prosecutors criticizing the Abscam investigators' tactics. They then obtained a hearing on their due-process claim, at which the New Jersey prosecutors were called as witnesses by the defendants. Ultimately, the court rejected the due-process argument, holding that the alleged 'due process violations have rarely required dismissal either of indictments or of convictions that were obtained on sound and convincing evidence.' Id. at 1246. However, even if the high legal standard of a due-process claim is difficult to meet, defense attorneys at the very least may obtain valuable discovery about an investigation and the government's witnesses by building defenses based on prosecutorial misconduct as revealed in an interagency fight.

Finally, defense counsel should be sensitive to the public-relations aspect of a prosecutorial brawl. In some instances, they need act only as a mail drop. In the New Jersey corruption case, the New Jersey U.S. Attorney's anger at the state prosecutors reached the public via a letter he sent to counsel for the complaining witnesses, who promptly distributed it to the press. In other instances, where such fights alienate judges, juries and just about everyone else, the defense counsel can use the prosecutorial food fight in ways obvious and subtle to discredit the case against his client. Allusions to the fight can be raised in discovery requests, motions to the court, and even, as happened in Abscam, by calling the disgruntled prosecutors as witnesses.

Conclustion

Ultimately, a resourceful defense counsel (especially in New Jersey, it seems) can mine opportunities in the spectacle of prosecutors who appear more focused on feuding with each other than prosecuting the law and doing justice.

Gregory J. Wallance, a member of this newsletter's Board of Editors, is a partner at Kaye Scholer LLP, where he concentrates in white-collar and financial services litigation. As an Assistant U.S. Attorney he was a member of the team that prosecuted the Abscam cases described in this article.

The rise in white-collar prosecutions has been accompanied by an escalation of fights between prosecutors. In 2003, the Oklahoma Attorney General indicted WorldCom and its CEO, Bernard J. Ebbers, even though WorldCom was based in Mississippi, had filed for bankruptcy, and the Department of Justice (DOJ) had already indicted and secured the cooperation of several WorldCom executives as part of its ongoing investigation of Ebbers. Plainly angry, the U.S. Attorney for the Southern District expressed his 'disappointment' that 'we were not told that charges were imminent as we have enjoyed a cooperative relationship with the Attorneys General of other states.' This year, the U.S. Attorney for New Jersey declined to prosecute a prominent political party broker in a bribery investigation ' and blamed the State Attorney General's Office's investigation for having botched the case. In a leaked letter, the U.S. Attorney complained that a 'federal indictment is not appropriate now, in part because the state investigation was materially hampered by poor oversight, inexplicable strategic decisions and a failure to fully develop potential evidence.'

The inevitable tension, if not enmity, that arises when multiple prosecutors chase the same target presents potential opportunities for the white-collar defense counsel. True, the client's perspective might be similar to that of a prey stalked by hungry carnivores. But his or her counsel should carefully assess whether a client's case can, in fact, be advanced by exploiting a law enforcement turf battle.

Before the Fight Begins

Ours is a system of dual sovereignty, which means that an individual or company can be prosecuted for the same offense by both state and federal criminal law enforcement agencies absent a state-enacted bar to multiple prosecutions. See Nathan, IB: Multiple Jeopardy ' Concurrent State and Federal Prosecutions for the Same White-Collar Offense. Business Crimes Bulletin (December 2005). Approx-imately half the states have enacted such bars, but not all of these have expressly prohibited a state prosecution following a federal conviction. Defense counsel must first check whether the state has such a bar. Assuming that a plea is inevitable, in a broad-prohibition state defense counsel obviously should negotiate any plea agreement with federal authorities.

However, if the defendant is not in a broad-prohibition state, then any defense strategy has to take into account the risk of dual prosecutions. Where the federal and state authorities are likely to cooperate (most typically with the state prosecutors deferring to the federal prosecutors), a target probably has little room to maneuver. But when the local dynamic is such that federal and state prosecutors are inclined to fight over a case, especially a high-profile one, the client can be the beneficiary.

If his client can offer helpful testimony, then the defense attorney has a bargaining chip whose value increases in direct proportion to the intensity of the prosecutorial catfight. One approach is to put the client's cooperation on the bidding block and let market forces go to work. However, ultimately, the defense attorney must be in a position to assure the client that the loser in the bidding war will not indict anyway. Optimally, a condition of cooperation should be that the winning bidder obtain a binding commitment from the loser not to bring charges. If the prosecutors are fighting with each other this may not always be possible.

One strategy, not for the fainthearted, is to bargain for either transactional or use immunity with the prosecutors offering the best terms and gamble that the competing prosecutors will be unable to bring charges untainted by the immunized testimony. Transac-tional immunity bars a prosecution for the conduct to which the immunized testimony relates. Use immunity bars the direct or indirect use by prosecutors of the testimony itself to prosecute the immunized witness, other than for giving perjured testimony under the immunity grant. If federal prosecutors grant use immunity to a cooperating witness, then no state prosecutor can use in any way that testimony to prosecute the witness. Conversely, a grant of immunity by state prosecutors has the same impact on federal prosecutors. In New York, for example, any witness testifying in the grand jury automatically receives transactional immunity. See N.Y. Crim. Proc. L. ” 50.10 & 20; 190.40, which is treated like use immunity in any federal prosecution. See United States v. DeSalvo , 26 F.3d 1216, 1221 (2d Cir. 1994) ('testimony given under a state grant of transactional immunity earns only use immunity in a federal court.').

Assume that a defense attorney can obtain from a state law enforcement agency a misdemeanor plea without prison while federal prosecutors insist on a felony plea with a prison term. The defense attorney could negotiate a deal that includes putting his client in the grand jury, in effect, giving him an 'immunity bath.' Regardless of which type of immunity a witness receives from state authorities, federal prosecutors are barred from filing charges in any way tainted by the immunized testimony; indeed, they cannot even use the immunized testimony to pursue leads against the immunized witness. This strategy banks on what the Supreme Court terms the 'heavy burden' prosecutors must meet to bring charges untainted by the immunized testimony, Kastigar v. United States , 406 U.S. 441, 461-62 (1972). Indeed, in any Kastigar challenge to a prosecution, the prosecutors must affirmatively prove that their charges were wholly independent of the immunized testimony.

The strategy is a gamble because federal prosecutors can and do bring charges untainted by state immunized testimony. The strategy works best where, despite interagency animosity, the state and federal prosecutors are sharing information at some level, and therefore the defense has reason to believe that the immunized testimony will at least indirectly permeate the federal investigation. It may also have prospects for success where the immunized testimony is likely to be heard in the public domain, either because the witness gives immunized testimony at a public proceeding, or where there are leaks of the immunized testimony to the press. In that circumstance, federal prosecutors will be challenged to demonstrate that their charges were untainted by the immunized testimony. See United States v. North, 910 F.2d 843 (D.C. Cir. 1990) (vacating conviction of Oliver North because his immunized, widely publicized Congressional testimony, inter alia , refreshed the recollections of government witnesses at his criminal trial).

After the Fight Begins

Assume that the state prosecutors, to get a jump on the federal prosecutors, indict first, and the federal prosecutors are not far behind. If the strategy favors keeping the case limited to the federal prosecution, the best option may be to let the prosecutors fight, although the outcome may be pyrrhic. In the WorldCom case, for example, the Oklahoma Attorney General deferred his charges following a meeting between the two offices that the U.S. Attorney characterized as a 'frank and productive discussion,' a phrase foreign diplomats use when they mean confrontational and angry. But, in the end, following Ebbers' conviction and 25-year sentence, the Oklahoma Attorney General announced that he would not pursue charges.

On the other hand, if the strategy is to keep the case confined to the state system, the defense counsel's best option may be to remind the federal prosecutor of the so-called 'Petite Rule' from a Supreme Court case where the Solicitor General represented that the United States has a policy against 'multiple prosecutions' that was 'closely related to that against duplicating federal-state prosecutions.' Petite v. United States , 361 U.S. 529 (1960). The Petite Rule requires that three substantive circumstances exist before the DOJ brings a federal prosecution following a state conviction: 1) whether a substantial federal interest is involved in the case; 2) whether the state prosecution vindicated that outcome; and 3) whether the federal prosecutors have sufficient evidence to obtain and sustain a conviction. See Dual and Successive Federal Prosecution Policy, U.S. Attorneys' Manual ' 9-2.031 (2005).

The Petite policy confers no rights on a defendant who has been convicted in state court and now faces a possible federal prosecution. Nonetheless, where possible, defense counsel can and should argue to the federal prosecutors that the Petite policy prerequisites have not been met and, on that basis, decline to bring a follow-on prosecution.

Open Warfare

Occasionally, battles between prosecutors become so pitched and ferocious as to create potential defenses and witnesses for the defense. Such a war broke out in the Abscam prosecutions of six Congressmen and a Senator in the early 1980s. The investigation, and most of the indictments, was handled by federal prosecutors in Brooklyn. The officials they indicted included a mayor, a Congressman and a U.S. Senator from New Jersey. As a federal judge later said, the New Jersey prosecutors were 'jealous of the obvious importance and success of the investigation ' Once it became apparent that the New Jersey U.S. Attorney's office would play a minor role in these major investigations, the [NJ AUSAs] took a negative view of everything about Abscam.' One New Jersey AUSA told a Brooklyn federal prosecutor, 'I hope the whole thing blows up in your face.' As the District Court observed, the New Jersey federal prosecutors 'acted as if they had convinced themselves that the highest duties of a prosecutor were to manufacture arguments for the defendants,' and 'almost obstructed the investigation.' United States v. Myers , 527 S. Supp. 1206, 1246-47 (E.D.N.Y. 1982).

The defense attempted to exploit the prosecutorial battle by claiming that the Abscam investigation violated the defendants' due-process rights and by obtaining discovery, including the 'confidential government memoranda' written by the New Jersey prosecutors criticizing the Abscam investigators' tactics. They then obtained a hearing on their due-process claim, at which the New Jersey prosecutors were called as witnesses by the defendants. Ultimately, the court rejected the due-process argument, holding that the alleged 'due process violations have rarely required dismissal either of indictments or of convictions that were obtained on sound and convincing evidence.' Id. at 1246. However, even if the high legal standard of a due-process claim is difficult to meet, defense attorneys at the very least may obtain valuable discovery about an investigation and the government's witnesses by building defenses based on prosecutorial misconduct as revealed in an interagency fight.

Finally, defense counsel should be sensitive to the public-relations aspect of a prosecutorial brawl. In some instances, they need act only as a mail drop. In the New Jersey corruption case, the New Jersey U.S. Attorney's anger at the state prosecutors reached the public via a letter he sent to counsel for the complaining witnesses, who promptly distributed it to the press. In other instances, where such fights alienate judges, juries and just about everyone else, the defense counsel can use the prosecutorial food fight in ways obvious and subtle to discredit the case against his client. Allusions to the fight can be raised in discovery requests, motions to the court, and even, as happened in Abscam, by calling the disgruntled prosecutors as witnesses.

Conclustion

Ultimately, a resourceful defense counsel (especially in New Jersey, it seems) can mine opportunities in the spectacle of prosecutors who appear more focused on feuding with each other than prosecuting the law and doing justice.

Gregory J. Wallance, a member of this newsletter's Board of Editors, is a partner at Kaye Scholer LLP, where he concentrates in white-collar and financial services litigation. As an Assistant U.S. Attorney he was a member of the team that prosecuted the Abscam cases described in this article.