Fumo - Govt Mil Preclude Advice Of Counsel

U.S. Department of Justice United States Attorney Eastern District ofPennsylvania John J. Pease

615 Chestnut Street

Direct Dial: (215) 861-8340

Suite 1250

Facsimile: (215) 861-8618

Philadelphia, Pennsylvania 19106-4476

E-mail Address: [email protected]

(215) 861-8200

December 31,2008

The Honorable Ronald L. Buckwalter Senior Judge, United States District Court

14614 United States Courthouse 601 Market Street

Philadelphia, PA 19106-1755 Re:

United States v. Vincent J. Fumo, et al. Criminal No. 06-00319-03

Dear Judge Buckwalter: Please find enclosed a courtesy copy of the United States of America's "Motion to Preclude Advice of Counsel as a Defense to Violations of 18 U.S.C. § 1519

and for Hearing Regarding Applicability of the Defense to Other Obstruction of Justice Charges." This document has been filed electronically and served on defense counsel. Respectfully yours, LAURIE MAGID

Acting United States Attorney

/s/ John J. Pease JOHN J. PEASE ROBERT A. ZAUZMER

Assistant United States Attorneys Enclosure

cc:

See Certificate of Service

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA CRIMINAL NO. 06-319

v.

VINCENT J. FUMO RUTH ARNAO

UNITED STATES OF AMERICA'S MOTION TO PRECLUDE ADVICE OF COUNSEL AS A DEFENSE TO VIOLATIONS OF 18 U.S.C. § 1519

AND FOR HEARING REGARDING APPLICABILITY OF THE DEFENSE TO OTHER OBSTRUCTION OF JUSTICE CHARGES

Defendant Vincent J. Fumo has stated an intention to present an advice of counsel defense to the charges of obstruction ofjustice in this case. That should not be permitted. With respect to one set of obstruction charges, based on 18 U.S.C. § 1519, no advice of counsel defense is permitted as a matter of law. With regard to the remaining

obstruction charges, resting on provisions of 18 U.S.C. § 1512, the government believes

that Fumo will be unable to present the necessary factual foundation for the defense, and that no evidence on the subject should be allowed until he does so outside the presence of the jury.

This motion relates to the defense portion of the case, which has not commenced. We present the motion at this early stage for the Court's convenience.

I.

BACKGROUND.

In this case, Fumo is charged with, among many other crimes, obstruction

ofjustice in violation of 18 U.S.C. § 1512(b)(2)(B) (9 counts); 18 U.S.C. § 1512(c)(l) (2 counts); and 18 U.S.C. § 1519 (21 counts). He is also charged in Count 109 with

conspiracy to obstruct justice, in violation of 18 U.S.C. § 371.1 These charges rest on a sustained and systematic effort by Fumo and his staff to destroy electronic and other

evidence beginning in December 2003, upon apprehending and then gaining confirmation

of an investigation into their conduct by the FBI, the IRS, and a federal grand jury. While the government during the present trial has presented some evidence related to these charges, the full presentation of evidence supporting the obstruction allegations will not commence until the week of January 5, 2009.

Throughout the course of the investigation (which culminated in a superseding indictment naming Fumo on February 6, 2007), Fumo was represented by

attorney Richard A. Sprague and his firm. At that time, the government repeatedly asked

the Sprague attorneys whether Fumo received any advice of counsel in connection with

1

Co-defendant Ruth Arnao is also charged with conspiracy to obstruct justice in

Count 109, and with one count in violation of 18 U.S.C. § 1512(b)(2)(B) (Count 132);

one count in violation of 18 U.S.C. § 1512(c)(l) (Count 126); and five counts in violation of 18 U.S.C. § 1519 (Counts 121, 124, 127, 129, and 134). She has not provided notice of any advice of counsel defense, and it is difficult to see how she could, given that she was not represented by the attorneys identified by Fumo in his notice. If she were to seek to present an advice of counsel defense based on alleged knowledge of advice given to

Fumo, the same arguments presented in this memorandum would apply to her as well.

the widespread destruction of evidence which the government was uncovering, and was

repeatedly told that the Sprague attorneys offered no such advice. Indeed, as will be discussed in more detail below, both Sprague and his colleague, Mark B. Sheppard, explicitly confirmed this to Judge Yohn during a pretrial hearing. The Sprague attorneys

did advise, however, prior to the return of the indictment, that Fumo received advice of counsel from attorney Robert Scandone regarding the deletion of evidence. The

government and the grand jury then questioned Scandone, and found this claim factually unfounded.

Despite the Sprague firm's earlier representation that there would be no advice of counsel defense based on their interactions with Fumo, on September 5, 2008, on the Friday afternoon before the scheduled start of the trial, present counsel wrote to the

prosecutors that "with respect to the various charges under 18 U.S.C. §§ 1512 and 1519, we intend to rely, in part, on legal advice that Mr. Fumo received or understood he had

received. Specifically, at all relevant times up to February 18, 2005, when the search warrant was served, Mr. Fumo relied upon advice given to him by his long-time attorney and confidant, Richard A. Sprague, that it was permissible under federal law not to retain any document that was not under subpoena." The letter further advised that "Senator

Fumo also relied on similar advice he received from attorney Robert Scandone."

II.

LEGAL ANALYSIS.

A.

No Advice of Counsel Defense May Be Presented to Charges Under 18 U.S.C. § 1519.

As a matter of law, advice of counsel is not a defense to the charges in this

case under Section 1519. Therefore, even if the Court allows evidence regarding the alleged advice of counsel, the jury must be instructed that the defense is inapplicable to the Section 1519 charges.

That statute provides: Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

As is clear from reading the statute, the government must prove that the defendant acted knowingly, and with the intent to obstruct a pending or contemplated investigation. There is no requirement that the defendant act "willfully," that is, with a

specific intent to violate the law. That point is dispositive here, as advice of counsel is a defense only to specific intent crimes, which Section 1519 is not. 1.

Advice of Counsel is a Defense Only to Specific Intent Crimes.

The essence of an advice of counsel defense "is that, in relying on counsel's

advice, [a] defendant lacked the requisite intent to violate the law." United States v.

Traitz. 871 F.2d 368, 382 (3d Cir. 1989) (quoting United States v. Polvtarides. 584 F.2d 1350,1353 (4th Cir. 1978)). Thus, as the Fifth Circuit explained in United States v. Powell. 513 F.2d

1249 (8th Cir. 1975), a charge regarding the defense "is warranted only where the crime charged involves willful and unlawful intent." Id. at 1251. In Powell, the defendant was

charged with unlawful dealing in firearms without a license, a general intent crime, and the court therefore rejected the availability of the defense. "Specific intent or knowledge of the defendant that he is violating the law is not an essential element of the crime of unlawful firearms dealing under section 922(a)(l)," the court held, and therefore advice of counsel was irrelevant. Id.

Among the numerous consistent decisions rejecting an advice of counsel defense for general intent crimes are these: United States v. Smith. 2001 WL 371927, at

*2 (9th Cir. 2001) (not published) (manufacturing and possessing a controlled substance in violation of 21 U.S.C. §§ 841(a)(l) and 844); United States v. Scarmazzo. 554 F. Supp.

2d 1102, 1110 (E.D. Cal. 2008) (conspiracy to distribute a controlled substance); United States v. Schafer. 2007 WL 2121734, at *4 (E.D. Cal. 2007) (same); United States v. Mihalich. 2006 WL 3499984, at *3 (N.D. Ohio 2006) (operating an illegal gambling

business in violation of 18 U.S.C. § 1955); United States v. Cross. 113 F. Supp. 2d 1253, 1256 (S.D. Ind. 2000) (same); United States v. Dver. 750 F. Supp. 1278, 1293 (E.D. Va.

1990) (violating 18 U.S.C. § 857, the since-repealed Mail Order Drug Paraphernalia

Acfl:2 United States v. Lord. 710 F. Supp. 615, 616-17 (E.D. Va. 1989) (violating 18 U.S.C. § 208(a), the conflict of interest statute); and United States v. Plitt Southern

Theatres. Inc.. 1987 WL 19346, *9 (W.D.N.C. 1987) (violation of the Sherman Act). This settled rule of law is also reflected in model jury instructions here and elsewhere. See, e.g.. Third Circuit Model Crim. Jury Instr. § 5.05 cmt. (2008) ("Good faith, in the sense of the defendant's honest belief that his or her conduct was lawful, is a defense to any offense in which the mental state element requires proof that the defendant

was aware that his or her conduct was unlawful (e.g., willfully as defined in this instruction)."); Ninth Circuit Model Crim. Jury Instr. § 5.9 cmt. (2003) (advice of counsel is a defense to crimes involving willful and unlawful intent); Eleventh Circuit Pattern

Crim. Jury Instr., Special Instr. § 18 (2003) (advice of counsel, as a subset of the good faith defense, applies only where willfulness is charged).

2

In granting the government's motion in limine excluding advice of counsel

evidence, the Dyer court noted that the evidence was excludable under Federal Rules of Evidence 402 and 403. 750 F. Supp. at 1293 n.30. The court reasoned that the evidence

would be highly prejudicial because it would confuse the jury by leading it to believe that the statute employs a willfulness scienter requirement. Id.

2.

Section 1519 is Not a Specific Intent Crime.

The definition of the intent requirement for a federal offense lies with Congress, and the issue is therefore one of statutory construction. Staples v. United

States. 511 U.S. 600, 605 (1994) ("we have long recognized that determining the mental state required for commission of a federal crime requires 'construction of the statute and ... inference of the intent of Congress.") (quoting United States v. Balint. 258 U.S. 250, 253 (1922)). The proper construction of Section 1519 is unmistakable. First, the language of the statute is clear. It requires only that the defendant acted knowingly, that is, with awareness of his conduct, and that he acted with intent to impede a pending or contemplated investigation. There is no requirement that the

defendant intend to violate the law, and thus, as the cases cited above explain, there is no mens rea that advice of counsel may negate.

Second, this interpretation of Section 1519 is confirmed by the default rule that knowledge of the law is irrelevant in a criminal offense. "The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply

rooted in the American legal system." Cheek v. United States. 498 U.S. 192,199 (1991). Accordingly, Congress usually imposes an element of "willfullness" when it

intends to deviate from the standard rule, and require proof that a defendant knew of and

intended to violate the law. The Supreme Court recently explained: "When the term

'willful' or 'willfully' has been used in a criminal statute, we have regularly read the modifier as limiting liability to knowing violations.... Thus we have consistently held that a defendant cannot harbor such criminal intent unless he 'acted with knowledge that his conduct was unlawful.'" Safeco Ins. Co. of America v. Burr. 127 S. Ct. 2201, 2209

n.9 (2007) (quoting Brvan v. United States. 524 U.S. 184, 193 (1998)).

Section 1519 does not require "willfulness." Rather, it demands proof only that the defendant acted "knowingly," that is, with awareness of his conduct. That term "merely requires proof of knowledge of the facts that constitute the offense." Bryan. 524 U.S. at 193 (further noting that "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law."). In short, requiring proof of an intent to violate the law is the exception rather than the rule. The relatively few exceptions to the general rule arose from statutes that proscribe conduct that is not inherently wrong, and absent greater specificity, would

pose a risk of criminalizing innocent conduct. For example, the Supreme Court has traditionally interpreted the term "willfully" as used in the federal criminal tax statutes as requiring proof that the

defendant acted with knowledge of the law and an intent to violate it. Cheek. 498 U.S. at 200 (citing United States v. Murdock. 290 U.S. 389, 394 (1933)). The Court explained

that "[t]his special treatment of criminal tax offenses is largely due to the complexity of

8

the tax laws." Id It reasoned that the complexities are such that citizens may not

"comprehend the extent of the duties and obligations imposed," and thus innocently believe they are not violating the law. Id.

The Supreme Court reached a similar conclusion in a different context in Liparota v. United States. 471 U.S. 419 (1985). At issue there was the federal statute governing food stamp fraud, 7 U.S.C. § 2024(b)(l), which punishes anyone who

"knowingly uses, transfers, acquires, alters, or possesses" food stamps in an unauthorized manner. So as to avoid criminalizing "a broad range of apparently innocent conduct," the

Court held that to violate the statute, the defendant must have known that his possession of food stamps was illegal. Id. at 431. The Court distinguished food stamp fraud from

other public welfare offenses, which did not require greater specific intent because they "rendered criminal a type of conduct that a reasonable person should know... may

seriously threaten the community's health or safety." Id at 433 (noting that "[a] food stamp can hardly be compared to a hand grenade ... or ... the selling of adulterated drugs."). Subsequently, in Ratzlaf v. United States. 510 U.S. 135, 149 (1994), the

Supreme Court held that the term "willfully," as used in 31 U.S.C. § 5324, required proof

that the defendant, in structuring cash transactions to avoid a reporting requirement, knew his conduct was unlawful. While mindful of the "venerable principle that ignorance of

the law generally is not a defense to a criminal charge," the Court determined that

currency structuring was not so "obviously 'evil' or inherently 'bad' that the willfulness requirement is satisfied irrespective of the defendant's knowledge of the illegality of the

structuring." Id at 146 (citations omitted). The Third Circuit has similarly distinguished statutes that punish conduct that is inherently wrong from those that do not. For example, in United States v. Curran.

20 F.3d 560 (3d Cir. 1994), the defendant was charged under 18 U.S.C. § 2(b) and § 1001 with knowingly and willfully causing election campaign treasurers to submit false reports to the Federal Election Commission. The Third Circuit determined that to establish willfulness in the federal election law context, the government must prove that the defendant acted with knowledge that his conduct was unlawful. Id. at 569. Citing Ratzlaf. the Court of Appeals reasoned that the crimes proscribed were not "obviously 'evil' or inherently 'bad,'" and found "little difference between breaking a cash

transaction into segments ... and making a contribution in the name of another." Id (citations omitted.)

In point of contrast, the Court cited its construction of 18 U.S.C.

§ 152, a "malum in se statute governing bankruptcy fraud," for which proof of knowledge

of illegality was held not required. Id. at n.5 (citing United States v. Zerhbach. 1994 WL 96690 (3d Cir. 1994)).

10

Here, the single paragraph that is Section 1519 is not even remotely

analogous to the morass of highly technical rules that make up the Internal Revenue Code, or to other regulatory offenses. The statute, unlike those at issue in Ratzlaf.

Curran. and the tax crimes, does not include the word "willful." Further, the statute bars a person from destroying or concealing evidence known to be material to a pending or

contemplated federal investigation. The wrongfulness of such conduct is apparent, and

thus no specific intent requirement may be imposed.3 Indeed, the legislative history makes explicitly clear Congress' intent that the statute mean exactly what it says ~ that any person who knowingly acts to prevent

3

In fact, the basic act prohibited by Section 1519 which is at issue in this case ~

making evidence unavailable in a pending or contemplated federal investigation ~ has long been illegal, even before the adoption of Section 1519. Section 1512 prohibits exactly such conduct. Indeed, Arthur Andersen LLP v. United States. 544 U.S. 696 (2005), involved a prosecution under Section 1512, and the Court there held that a firm which continued a practice of destroying documents upon learning of a planned investigation could be liable, so long as it acted "corruptly" as required by that statute. Thus, the charges in this case do not involve esoteric and difficult-to-conceive wrongs. In fact, the essence of Fumo's defense is that attorneys gave him incorrect advice; the defense thus acknowledges that the law is well-settled.

Analogously, in an earlier decision in this case, Judge Yohn rejected Fumo's argument that Section 1519 is unduly vague, finding its meaning clear: "The statute 'give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly' and 'provide[s] explicit standards for those who apply them.'" United States v. Fumo. 2007 WL 3132816, * 18 (E.D. Pa. 2007) (footnote omitted; quoting Village of Hoffman Estates v. Flipside. Hoffman Estates. Inc.. 455 U.S. 489,498 (1982)). 11

evidence from being available in an investigation is culpable. The statute was adopted in

2002 in direct response to the widely publicized Arthur Andersen/Enron scandal,4 which brought into focus certain perceived deficiencies in preexisting obstruction statutes.

Senator Patrick Leahy, then-Chairman of the Committee on the Judiciary, and one of the co-sponsors and drafters of Section 1519, explained:

[T]he current laws regarding the destruction of evidence are full of ambiguities and technical limitations that should be corrected. This provision is meant to accomplish those ends.... Section 1519 is meant to apply broadly to any acts to

destroy or fabricate physical evidence so long as they are done with the intent to

obstruct, impede or influence the investigation or proper administration of any matter

[T]he intent required is the intent to obstruct

The intent of the

provision is simple; people should not be destroying, altering, or falsifying documents to obstruct any government function. 148 Cong. Rec. S7418, at S7419 (daily ed. July 26,2002) (statement of Sen. Leahy). Thus, the statute differs in its simplicity in many respects from Section 1512, a preexisting obstruction statute, which requires that offending acts be done

"corruptly." As acknowledged below, that element requires proof of unlawful intent. It was conspicuously omitted from Section 1519, which, as Senator Leahy stated, requires

4

See 148 Cong. Rec. H1544-02, at H1554 (Apr. 24, 2002) (Rep. Douglas

Bereuter, an original co-sponsor of the legislation, explained on the House floor: "In

large part, H.R. 3763 is a response to the grossly negligent activities by Arthur Andersen in their accounting audit of the Enron Corporation.... [A]fter the Securities and

Exchange Commission, SEC, began investigating the Enron matter, Arthur Andersen

nonetheless allegedly continued to destroy documents and e-mails related to its audit of Enron."). 12

proof only of knowing conduct and an intent that evidence be unavailable in an investigation. Congress' intent not to impose a willfulness requirement could not be clearer, both from the statutory text and the legislative history.

For these reasons, advice of counsel is not a defense to a Section 1519

charge. Such advice, even if given, does not negate the only elements of the crime, that is, knowledge of the facts, and an intent to make evidence unavailable in an investigation. Fumo's intent to impede the investigation will be established by evidence that Fumo, in anticipation of and upon learning of the investigation, knowingly orchestrated and

participated in the destruction of evidence. That is all Section 1519 requires. If that is shown, any advice any attorney might have given Fumo would be irrelevant, as Fumo would have sought the advice in furtherance of an unlawful scheme. See, e.g.. Traitz. 871

F.2d at 382 (noting that advice of counsel "is not designed to insulate illegal conduct."). Indeed, allowing Fumo to rely upon an advice of counsel defense would effectively defeat the very purpose of Section 1519, by insulating precisely the sort of conduct Congress sought to punish and deter.

13

B.

Fumo Must Be Required to — and Likely Cannot ~ Set Forth Sufficient Evidence to Be Permitted to Present an Advice of Counsel Defense to the Section 1512 Charges.

In contrast to Section 1519, the offenses described at Sections

1512(b)(2)(B) and 1512(c)(l) may be the subject of an advice of counsel defense.5 These Section 1512 offenses include an additional element, not found in Section 1519, that the

defendant who seeks to obstruct justice act "corruptly." The recently adopted Third Circuit Pattern Jury Instructions provide: "To 'corruptly persuade' means to corrupt another person by persuading (him)(her) to violate a legal duty, to accomplish an

unlawful end or unlawful result, or to accomplish some otherwise lawful end or lawful result in an unlawful manner." Inst. 6.18.1512B. See also Arthur Andersen LLP v. United States. 544 U.S. 696, 706 (2005) (corrupt persuasion requires proof that the

defendant was "conscious of wrongdoing"). Thus, advice of counsel may be a defense to a Section 1512 charge, in contrast to Section 1519. However, the defendant must proffer sufficient evidence to be permitted to

pursue the defense.6 It appears that Fumo will not succeed in that regard.

5

All of the elements of the various obstruction charges in this case, and other

issues regarding the obstruction charges, are discussed at length in the government's trial memorandum, at pages 10-21.

6

Should this Court disagree with the government's view that there is no advice

of counsel defense to a Section 1519 charge as a matter of law, the same argument would apply with respect to the 1519 charges as well. 14

The Third Circuit recently confirmed that no instruction regarding an advice of counsel defense should be given unless the prerequisites of the defense are established.

Certainly a district court is "bound to give the substance of a requested instruction relating to any defense theory for which there was any foundation in the evidence." United States v. Blair. 456 F.2d 514, 520 (3d Cir. 1972). But a court

also ha[s] to avoid diverting the jury by idle speculation and frivolous considerations. A confused jury can give as improper a verdict as one

which has failed to receive some significant instruction. Therefore, the charge should direct and focus the jury's attention on the evidence given at trial, not on far fetched and irrelated ideas that do not sustain a defense to the charges involved. Id. (citation omitted). There was no evidence that Hoffecker and Field had an

attorney-client relationship between 1996 and 1998, or that Field gave him legal advice, on which Hoffecker relied. As the District Court found, Hoffecker's

argument that Field "performed a legal function" was "specious." App. vol. 53 at 84. Inasmuch as there was no evidentiary support for the instruction, the court correctly did not give the instruction which would have been unjustified and confusing to the jury. United States v. Hoffecker. 530 F.3d 137, 156 (3d Cir. 2008). Accord United States v. Al-Shahin. 474 F.3d 941, 947-48 (7th Cir. 2007) (district court correctly refused to tender

jury instruction on advice of counsel where defense was not supported by the evidence, and defendants had sought advice to further fraudulent scheme); United States v. Rice, 449 F.3d 887, 896-97 (8th Cir. 2006) (district court did not err in refusing to give an

advice of counsel instruction where facts did not support it). The requisites of an advice of counsel defense are long established. "It

must be remembered that the advice of counsel defense is meant to be available only to 15

those who, after full and honest disclosure of the material facts surrounding a possible

course of action, seek and obtain the advice of counsel on the potential legality of their actions. The defense is not designed to insulate illegal conduct." United States v. Traitz.

871 F.2d 368, 382 (3d Cir. 1989) (citations omitted). Consistent with Third Circuit law, the Seventh Circuit has helpfully defined the elements of the defense as follows: (1) before taking action, (2) [the defendant] in good faith sought the advice of an attorney whom he considered competent, (3) for the purpose of securing advice on

the lawfulness of his possible future conduct, (4) and made a full and accurate report to his attorney of all material facts which the defendant knew, (5) and acted strictly in accordance with the advice of his attorney who had been given a full report.

United States v. Cheek. 3 F.3d 1057, 1061 (7th Cir. 1993) (internal quotation and citation omitted). Thus, in this case, Fumo will have to establish that before directing his staff to systematically "wipe" computers, he consulted attorneys, and gave them full information regarding his plans and regarding his desire to keep the electronic information out of the hands of federal investigators, and gained their approval. Based on the evidence known to the government, that never happened.

There is evidence that at the end of April 2004, almost immediately after

Citizens Alliance received a federal grand jury subpoena, Fumo had a brief discussion about that with attorney Robert Scandone, who had a contract with the Senate Democratic Appropriations Committee which Fumo chaired. Scandone stated to Fumo that Fumo, as 16

opposed to Citizens Alliance, had no obligation to respond to the subpoena, and that the ordinary business of the Senate office could continue. Notably, Fumo said nothing to Scandone about the fact that, earlier that month, at Fumo's direction, his aides had begun

wiping the computers of Senate staffers, nor did he reveal that to Scandone as the practice continued and accelerated over the ensuing months. Obviously, there was no disclosure

of material facts, either before or after Fumo commenced his course of conduct, and an advice of counsel defense is unavailable with respect to Scandone. In all likelihood, Fumo will contend that Scandone's statement that

"business could continue as usual," or words to that effect, represented an endorsement of the deletion of evidence, since Fumo had long asked employees to delete e-mails when

they were finished with them. However, as the evidence will show, deleting is different from wiping; deleted e-mails remain available, often for years, to sophisticated users. Only wiping permanently erases electronic evidence. There is no evidence that Scandone

ever knew of the practice of wiping office computers which Fumo's aides began earlier in April 2004 to thwart the investigation. In sum, there was no full disclosure of material details to Scandone, as the law requires, nor any disclosure prior to the commencement of

the illegal conduct. As for Sprague, he and his associates have, on behalf of Fumo, already informed the Court that no advice was given by them at the time of the destruction of

17

evidence. In a pleading filed with this Court on July 7, 2007, regarding the government's motion to disqualify the Sprague firm, Sprague, with Fumo's concurrence, told the Court that "Senator Fumo does not intend to present an advice of counsel defense to the

obstruction charges based upon any advice rendered by the Sprague Firm." See Proposed Findings of Fact of Defendant Vincent J. Fumo Relevant to the Government's Motion to Disqualify, H 144. Then, at a hearing before the Court on July 10, 2007, on behalf of

Fumo, attorney Sheppard addressed the destruction of evidence in 2004 and early 2005, and stated:

[Tjhere was no indication that the Sprague firm had any knowledge of this. So whether ~ I don't know if we weren't present, we didn't know about it ~ the minute there was any information that got to counsel, it was just immediately stopped for fear that it may be misinterpreted in just the fashion it has been. Tr. 21-22. Later in that same hearing, Sprague stated: [T]here is no indication that one person from the Sprague firm [k]new one iota of anything about any wiping, deleting until some time when Mr. Sheppard, upon learning of it, sends out the communication that you've heard here, don't do it. And it stopped as of then.

Id. at 124.7

7

The communication that Sprague referred to occurred more than six weeks

after the execution of a search warrant at Fumo's district office on February 18, 2005,

when Sheppard learned of the continuing deletion of electronic evidence and ordered the practice terminated. In contrast, the obstruction charges in the indictment largely focus on the 15 months preceding the search. 18

For his part, Fumo's present attorney referred in his opening statement in

this trial to a single e-mail, dated June 7,2004, as evidence that Sprague approved of the

deletion practice.8 However, contrary to Mr. Cogan's statements to the jury, that e-mail says nothing at all about wiping computers or deleting evidence. Rather, the e-mail only

inquires whether Fumo's aide could continue to make backup copies of computer files and keep them offsite, rather than on the office computers. No response to this e-mail exists, but even if Sprague approved the practice, there remains no evidence that Fumo

made any disclosure to Sprague of the acts which are actually at issue in this trial (the

deletion and wiping of files), or that Sprague gave his blessing to that conduct prior to its

commencement.9

8

Mr. Cogan described the e-mail in his opening statement to the jury as follows:

But he writes, "Dear Dick, June 7,2004, Technician Luchko says that we should

wipe." I'm giving you the e-mail he sends me, "the Berry servers that we have over here at the Senate." and it sounds like a good idea. It's obviously not illegal because I haven't been subpoenaed, nor has the Senate been subpoenaed, but I

won't do anything if you tell me that it's wrong. Now, he's got a law license but

he's not a practicing lawyer. He's now got one of the best-known lawyers in Philadelphia and Sprague, who does criminal law. He's got Scandone. They're telling him it's okay, business as usual.

Tr. 119 (October 22,2008) (emphasis supplied). This statement to the jury is wrong. As explained in the text, the e-mail in question said nothing about wiping computers or deleting e-mail.

9

In fact, on October 28, 2008, in response to this Court's Order dated October

14, 2008, the Sprague and Sprague law firm provided the government with 1,213 pages of 19

Thus, absent a proffer by Fumo of facts which meet the prerequisites of the

advice of counsel defense, no evidence supporting the defense should be allowed, and certainly no instruction regarding the defense should be given to the jury. III.

CONCLUSION.

The right to a fair trial does not include the right to assert defenses that have no basis in law or fact. As a matter of law, Fumo may not present an advice of counsel defense to the charges under Section 1519. And with respect to the remaining obstruction charges, he should not be allowed to present evidence or gain an instruction regarding the

documents related to the advice of counsel defense that Fumo intends to assert. These

once-privileged files do not include any response by Sprague or his associates to this June 7, 2004 e-mail. In addition, there is no other evidence in the records produced by the Sprague firm that supports Fumo's claim that he relied in good faith on advice given by the Sprague attorneys in deciding to delete e-mail and wipe computers after learning of the federal investigation. 20

advice of counsel defense absent a proffer of facts meeting the prerequisites of the defense.

Respectfully submitted, LAURIE MAGID

Acting United States Attorney

/s/John J. Pease JOHN J. PEASE

Assistant United States Attorney

/s/Robert A. Zauzmer

ROBERT A. ZAUZMER Assistant United States Attorney

21

CERTIFICATE OF SERVICE

I hereby certify that I have caused to be delivered by electronic filing to the Clerk of Court (resulting in an e-mail copy sent to counsel by the Clerk of Court), and by

direct e-mail, a true and correct copy of the foregoing pleading, to the following: Dennis J. Cogan, Esq.

2000 Market Street, Suite 2925

Philadelphia, PA 19103 Stephen R. LaCheen, Esq. LaCheen Dixon Wittels & Greenberg, LLP 1429 Walnut Street, 13th Floor Philadelphia, PA 19102

Peter Goldberger, Esq. 50 Rittenhouse Place Ardmore, PA 19003

David E. Shapiro, Esq. 1429 Walnut Street

Suite 1301 Philadelphia, PA 19102 Nialena Caravasos, Esq. Fitzpatrick & Caravasos 926 Public Ledger Building 620 Chestnut Street

Philadelphia, PA 19106 Counsel for Defendant Vincent J. Fumo

Edwin J. Jacobs, Jr., Esq. Stephen F. Funk, Esq.

Jacobs and Barbone, P.A. 1125 Pacific Avenue Atlantic City, NJ 08401

Counsel for Defendant Ruth Arnao

/s John J. Pease JOHN J. PEASE Assistant United States Attorney Dated: December 31,2008.