Fumo - Def Res Re Mil Re Advice Of Counsel

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA

:

v.

: : :

VINCENT J. FUMO,

No. 06-CR-319-03 (Ronald L. Buckwalter, J.) FILED ELECTRONICALLY

Defendant.

:

RESPONSE OF DEFENDANT FUMO IN OPPOSITION TO MOTION TO PRECLUDE ADVICE OF COUNSEL DEFENSE The United States has filed a motion seeking to preclude the defense of advice of counsel as to charges under 18 U.S.C. § 1519, and to require a hearing outside the presence of the jury prior to allowing the defendant to advance this defense as to other obstruction counts.

Doc. 427 (Dec. 31, 2008).

The

government’s belated motion changing its position on this matter is grossly unfair.

It is also legally unfounded, as applied to

the § 1519 counts, and neither legally sound nor procedurally warranted as applied to the other counts.

For the following

reasons, the motion must be denied. The government’s motion opens with a discussion of the "background" of this issue which conveniently overlooks a couple of the most important points:

First, the prosecutors nowhere

mention Judge Yohn’s extensive and detailed opinion, filed in this case on August 29, 2007, following an evidentiary hearing and extensive briefing. 6 (E.D.Pa. 2007).

See United States v. Fumo, 504 F.Supp.2d

It is the law of the case, as established in

that opinion, that the Sprague Firm’s representation of Senator

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Fumo during the entire time frame at issue here was ethically tainted by multiple conflicts of interest, both serious and less serious.

Id. 33-36.

In this regard, the Court to a large

extent adopted the position that the government had advocated. Second, until the government’s New Year’s Eve filing, the prosecution never claimed that an advice of counsel defense might not be unavailable.

Quite the contrary, at the hearing on conflict

of interest, the prosecutors sought Sprague’s removal from the case, in part, precisely because the defendant might decide to raise an advice of counsel defense which would make attorney Sprague and his partners into witnesses (either for or against their client, or some of each).

If no such defense applied to

the charges in this case, then the prosecutors could not have made that argument when it served their purposes in June and July 2007. For these reasons, the defendant is in no way estopped or bound by what was said on his behalf, in court or otherwise, by an attorney saddled with conflicts of interest, at least on matters to which that conflict is pertinent.1

While in many

cases a defendant can waive an attorney’s conflicts (as Judge Yohn also held), such waiver is only valid when knowingly and intelligently made (again, as Judge Yohn held).

There is no

_____________________ 1 This reason, among others, also explains why the government is mistaken in its motion (Doc. 452, filed Jan. 9, 2009) seeking to use as evidence at trial against Senator Fumo assertions that Sprague may have made to the prosecutors and/or agents in early 2004 and mid-2006 (or, more likely, agents’ recollections, characterizations, and understanding of those assertions) about weaknesses in the government’s case and the nature of the defense that would be presented. -2-

basis to think -- indeed, every reason to think otherwise -that a full and fair disclosure to Senator Fumo and a waiver by him of Sprague’s conflicts occurred prior to the making of the statements about advice of counsel referenced in the government’s motion.

AUSA Zauzmer raised this very issue in argument

before Judge Yohn:

"Now[,] they’ve said in their papers ...

[that there will be n]o advice of counsel defense[,] but are they conflicted in giving that advice?" 19.

N.T. (7/10/07), at 18-

Accordingly, none of those statements are attributable to

the defendant now, much less are they in any way binding. Judge Yohn seemed to recognize the same issue when he wrote in cautious and tentative terms, in the August 2007 opinion: "Counsel for Fumo has stated that, at this time, they do not intend to present an advice of counsel defense." at 19.

504 F.Supp.2d

Judge Yohn clearly did not take the Sprague Firm’s

position as final, authoritative or binding. The government, on the other hand, should be held judicially estopped from changing its position now on the availability of the advice of counsel defense.

See Zedner v. United

States, 547 U.S. 489, 126 S.Ct. 1976, 1987-88 (2006) (rejecting government’s particular invocation of judicial estoppel against defendant in criminal case); In re Teleglobe Communications Corp., 493 F.3d 345, 377 (3d Cir. 2007) (explaining doctrine). For example, the prosecutors asked on September 12, 2007, that Judge Yohn advise Senator Fumo, in relation to his proposed waiver of conflict, that: An advice of counsel defense may be presented where, as here, a person is charged with intentionally -3-

committing fraud, or destroying evidence with the intent to obstruct a federal investigation. Each of these crimes requires proof by the government, beyond a reasonable doubt, that the defendant acted with bad intent, that is, with intent to defraud or with intent to obstruct. In opposing such charges, a defendant may assert the defense, if true, that he relied in good faith on the advice of an attorney, after truthfully disclosing to the attorney all material facts, in taking the actions described by the government, and therefore did not have any wrongful intent. Gov’t Amended Proposed Waiver Colloquy ¶21 (Doc. 160, filed 9/12/07), at 8.

When the defense gave its notice of intent to

rely on this defense -- specifying quite clearly the counts to which we thought the defense would apply -- the government said nothing about the defense being categorically unavailable.

When

defense counsel opened to the jury with reference to this defense, again the prosecutors said nothing. The fact of the matter is that the government has now decided to try to hamstring the defense by changing its legal position. 1.

That tactic should not be allowed.

Advice of Counsel Under § 1519.

As a matter of law,

the government was right in July 2007, and is wrong now: reliance on the advice of counsel is indeed a valid defense to all the obstruction of justice charges in this indictment.

In

considering this issue, it is important to keep in mind that most criminal cases involving "advice of counsel," by definition, involve erroneous advice of counsel.

After all, if

counsel’s advice endorsing the defendant’s charged conduct had been correct, the Court would likely have dismissed the charges on pretrial motion.

The government is right that there are

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categories of offenses as to which advice of counsel applies differently, but the prosecutors’ motion (at pp. 4-6) has the law concerning advice of counsel almost completely backwards. First, there are some offenses where knowledge of the law is an element.

For these offenses, the government must prove

that the accused, at the time of the alleged act, held a subjective and accurate belief (or at least a conscious awareness) that his or her conduct was unlawful, although not necessarily that it was criminal.

E.g., Cheek v. United States, 498 U.S.

192 (1991); United States v. Pomponio, 429 U.S. 10, 12 (1976) (per curiam) (tax crimes); United States v. Alston, 77 F.3d 713, 718-21 (3d Cir. 1996) (conspiracy to defraud the United States in a tax matter); Ratzlaf v. United States, 510 U.S. 135 (1994) (structuring financial transactions); United States v. Curran, 20 F.3d 560 (3d Cir. 1995) (campaign finance violation).

The

fact that the conduct at issue would be innocent and not blameworthy under society’s general standards, had it not been made criminal by statute, is a significant factor in construing such provisions to require knowledge of illegality as part of the mens rea.

Id.

In such cases, any evidence concerning the

defendant’s knowledge of the pertinent law would be directly relevant, and a reasonable doubt about whether the defendant had the required knowledge, regardless of the reason for that ignorance, requires acquittal. Thus, whenever the statute as written or the case law construing that statute requires what Third Circuit Model Jury Instruction 5.05 defines as "willfulness," good faith belief in

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the lawfulness of one’s conduct is a defense.

The fact that the

defendant’s flawed knowledge (or mistaken belief) about the law may have been received from a lawyer cannot make that information less admissible.

Any relevant evidence on the mens rea

element must be allowed, without first imposing any three-part "test"; advice of counsel in that situation is not like an affirmative defense.

A reasonable doubt on the issue of whether

the defendant acted in good faith, that is, whether the defendant intended to violate the law as he or she understood it, is enough to require acquittal. The government claims that there is also a class of cases where advice of counsel is not a defense at all.

In support of

this argument, the prosecutors string-cite at pages 5-6 of their motion a number of non-precedential cases -- a remarkably weak showing of authority for what they claim is the general rule. It is true that there are many "general intent" crimes, where knowledge of the law or any intent to violate the law is ordinarily immaterial.

See, e.g., Bryan v. United States, 524

U.S. 184, 199 (1998) (discussing provisions of Gun Control Act which require only that prohibited act be committed "knowingly").

Perhaps there are cases where any (mistaken) advice of

counsel as to the legality of one’s acts would be irrelevant, although to our knowledge the Third Circuit has only identified one, and that was 33 years ago, in dictum, in a divided

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opinion.2

The model instruction in O’Malley, Grenig & Lee

suggests that the advice of counsel is a defense to any charge of "willful or deliberate wrongdoing."

1A Federal Jury Practice

and Instructions: Criminal § 19.08, at 837 (6th ed. 2008).

More

important is that nothing in the Third Circuit’s holdings about advice of counsel even hints at any support for the government’s restrictive position. The requirements for an "advice of counsel" defense are set forth in United States v. Traitz, 871 F.2d 368, 382-83 (3d Cir. 1988); United States v. Martorano, 767 F.2d 63, 66 (3d Cir. 1985) (per curiam); and Levinson v. United States, 263 F. 257 (3d Cir. 1920).

Martorano was prosecuted for knowingly making a

false statement on an ERISA document; the Third Circuit specifically held "that a general intent (a failure to disclose) rather than a specific intent (a failure to disclose knowing that such failure violates a statutory disclosure requirement) is all that is required to prove a violation of § 1027."

767 F.2d at 66.

On appeal, he claimed insufficient evidence to convict, based on his alleged reliance on legal advice that he need not make the disclosure at issue.

The Third Circuit affirmed, finding that

_____________________ 2 See United States v. Irwin, 546 F.2d 1048, 1053-54 (3d Cir. 1976) (although Selective Service Act penalized only "knowing and willful" failures to report for induction, court did not err in excluding defendant’s testimony that judge advised him he had to resolve pending court case before entering the military; citing with apparent approval cases stating advice of counsel is no defense to failure to appear for induction). This Third Circuit case by itself demonstrates that the government’s simplistic verbal-formula rule is incorrect. If Irwin was correctly decided (Judge Van Dusen dissented at length), then the answer clearly does not turn on whether "willfulness" is among the essential elements of the offense. -7-

the evidence failed to show either that appellant had made a full disclosure of the facts or that he had relied on the advice at issue.

The Court never suggested that the defense was cate-

gorically unavailable for a general intent crime. Similarly, in Levinson, the defendant was accused of "knowingly and fraudulently" presenting a false claim in bankruptcy.

The trial court charged the jury that if Levinson

"sought the advice of counsel, disclosing honestly and fully the real and true facts concerning his claim" and on the basis of advice he then received submitted the claim at issue, then "he should not be convicted."

The Third Circuit held this charge

was correct and that the issue was properly submitted for the jury’s decision.

Traitz was a Hobbs Act extortion case against

union leaders, where the government had to prove that the defendants invoked a "wrongful" use of force or fear.

The

district court instructed the jury on reliance "in good faith" on the advice of counsel.

The defendants objected that the

instructions had required the attorney’s advice have gone into more detail than appropriate about how the defendants would conduct themselves in their dealings with employers.

In

affirming, the Third Circuit never suggested that the court should not have charged on the defense at all.

Rather, the

Court held that "the jury charge on the advice of counsel defense was proper ...."

871 F.2d at 383 n.11.

The government now asserts, in contradiction of its earlier position, that 18 U.S.C. § 1519, because it does not require proof of knowledge of the law in every case, does not allow for

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an advice of counsel defense in any case.

But as the government

earlier conceded, and as the Third Circuit precedents show, this illogical position is wrong.

No offense exists under § 1519

unless the defendant acts both "knowingly" and "with the intent to impede, obstruct or influence the investigation ... of any matter within the jurisdiction or any department or agency of the United States ..., or in relation to or contemplation of any such matter ...."

The defendant therefore must act with

specific intent, not merely with general intent.

To be sure,

the required/prohibited specific intent is not "willfulness" or an "intent to violate the law," but it is a specific intent (that is, a particular purpose) nonetheless.

In such cases, at

least (if not in all cases, as Martorano would suggest), advice of counsel is a defense, although regulated.

It is telling that

in seven pages of discussion (Gov’t Mtn., at 7-13) the government cites not a single decision under § 1519 in support of its position.3 When Congress amended § 1519 in 2002 (it was formerly only a bankruptcy-related provision), with the purpose of eliminating some of the technical restrictions of §§ 1503 and 1512, including any suggestion that a "proceeding" in esse was required, it did not eliminate specific intent from the statute entirely.

After all, Congress could hardly be expected to make

it a felony to destroy any object or record that might someday prove interesting to a federal investigator.

_____________________ 3 Nor are defense counsel aware of any. -9-

As Chief Justice

Rehnquist wrote for a unanimous Supreme Court: [R]estraint in assessing the reach of a federal criminal statute ... is particularly appropriate where the act underlying the [accusation] ... is by itself innocuous. Indeed, ‘persuad[ing]’ a person ‘with intent to ... cause’ that person to ‘withhold’ testimony of documents from a Government proceeding or Government official is not inherently malign. ... * * * * ‘Document retention policies,’ which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business. ... It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances. Arthur Andersen LLP v. United States, 544 U.S. 696, 703-04 (2005) (discussing and construing 18 U.S.C. § 1512).

For these

same reasons, it cannot be presumed that Congress intended the specific intent requirement of § 1519 to be construed so strictly as to make it a felony to continue (or reinforce the importance of) a pre-existing, legitimate policy in all circumstances.

Even a well-informed attorney may have advice to give,

for example, on such issues as whether "the investigation of" a federal matter has begun, and whether the potential for such investigation is sufficiently concrete or likely that one can be said, in continuing a pre-existing policy, to be acting "in contemplation" of any such investigation.

And as already noted,

advice of counsel when invoked as a defense often involves an attorney’s giving of (what the criminal court has found to be) erroneous advice. Accordingly, this Court should not become the first since § 1519 was enacted to reach out and create an issue as to

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whether advice of counsel -- which, as already noted, means by definition erroneous advice of counsel -- is a cognizable defense to a prosecution under that law.

The first request for

relief in the government’s motion should be denied. 2. Defense.

Government Request for a Hearing on the Strength of the Nor should the Court waste everyone’s time with a non-

jury hearing on whether the defense will be able, through its own evidence and the cross-examination of government witnesses, to adduce sufficient evidence to justify a jury instruction on the advice of counsel defense.

Defense counsel have made the

good faith representation that we will.

The government’s hope

that we will not -- based on a selective reading of the Sprague Firm’s file and interviews with one or more of its attorneys -is an insufficient basis to justify the kind of minitrial proposed by the government in its motion.

The cited cases

(Gov’t Mtn. at 15) lend the prosecution no support -- they deal with whether an advice of counsel instruction should have been given, in light of the record in each of those cases at the close of the evidence.

None suggests the kind of preliminary

non-trial showing sought by the government. The prosecutors are wrong to suggest that the defense must "establish" the "elements of the defense."

Gov’t Mtn. at 16.

No case holds that advice of counsel is an affirmative defense on which the defense bears the burden of persuasion.

Rather,

advice of counsel, as a species of "good faith," is simply a basis on which the jury can entertain a reasonable doubt as to the defendant’s criminal intent, and thus acquit.

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See United

States v. Zehrbach, 47 F.3d 1252, 1261-62 (3d Cir. 1995) (en banc) (no separate charge required to explain that general "good faith" is simply inconsistent with specific "intent to defraud").

The defense burden is simply to offer some evidence

(direct or circumstantial) from which the jury might entertained a reasonable doubt on each of the propositions articulated in the Third Circuit cases.

See United States v. Hoffacker, 530

F.3d 137, 156 (3d Cir. 2008) (court must charge on advice of counsel defense if there is "any foundation in the evidence" for it).

"Where the advice of counsel is properly invoked it

becomes ‘a matter to be considered by the jury in determining the defendants’ guilt.’"

Traitz, 871 F.2d at 382 n.9.

The Court will appropriately instruct the jury to that if the defense is credited at least to the extent of generating reasonable doubt, then they should acquit on the count at issue. No preliminary hearing on the matter is needed.

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For these reasons, the government’s motion should be denied. Respectfully submitted, Dated: January 11, 2009 PETER GOLDBERGER PA Atty. No. 22364 50 Rittenhouse Place Ardmore, PA 19003 (610) 649-8200 fax: (610) 649-8362

By:

s/Peter Goldberger DENNIS J. COGAN DENNIS J. COGAN & ASSOC. 2000 Market St., suite 2925 Philadelphia, PA 19103 (215) 545-2400 fax: (215) 988-1842

e-mail: [email protected]

e-mail: [email protected]

STEPHEN ROBERT LaCHEEN LaCheen Wittels & Greenberg, LLP 1429 Walnut Street, 13th Floor Philadelphia, PA 19102 (215) 735-5900 fax: (215) 561-1860 e-mail: [email protected]

Attorneys for Defendant Vincent J. Fumo CERTIFICATE OF SERVICE On January 12, 2009, I served a copy of the foregoing document through the Court’s electronic filing system on the attorneys for the government, as follows: John J. Pease, Esq. Robert A. Zauzmer, Esq. Assistant U.S. Attorneys 615 Chestnut St., suite 1250 Philadelphia, PA 19106

Edwin J. Jacobs, Esq. JACOBS & BARBONE, P.A. 1125 Pacific Ave. Atlantic City, NJ 08402 __s/Peter Goldberger____________

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