PSD client awarded $40,250,000 in international child abduction case

A federal court in Boston awarded a left-behind father $40,250,000 on his claim that his ex-wife tortiously interfered with his custody rights to his two sons by abducting them to Egypt.

On August 26, 2013, a Massachusetts state court dismissed all charges brought against a client of Pollack Solomon Duffy LLP’s criminal defense practice. The Court dismissed the action in its entirety prior to trial, as a result of insufficient evidence to support the charges, which included a felony obstruction charge.

Two federal judges in West Virginia have agreed with PSD lawyers and their insurance carrier client, granting a motion to dismiss and denying a motion for remand.  The rulings included that a personal injury plaintiff improperly tried to add the carrier to an underlying medical malpractice case.  Also, the rulings established that an insurance coverage action by the physician was properly removed from state court to federal court based on a finding that the plaintiff “fraudulently joined” a local broker to avoid diversity of citizenship jurisdiction.  The removal papers had also cited to a complete preemption defense under the Federal Liability Risk Retention Act. McNeely v. Soyoola, 2:2012cv08727, S.D. W. Va.;  Soyoola v. Oceanus Insurance Co., et al., No. 2:13-cv-08907, S.D. W.Va.; 2013 U.S. Dist. LEXIS 102519.

By Joshua L. Solomon

While the Whitey Bulger trial was dominating local news, and reminds (or should remind) the country of a lengthy period of government corruption and direct participation in criminal conduct, the First Circuit issued an opinion that reflects ongoing willingness to place undue trust in federal law enforcement at the expense of criminal defendants and a striking lack of concern about claims of actual innocence.  The opinion, Moffat v. United States Department of Justice, also highlights the need for defense counsel to frame issues of government misconduct, law enforcement arrogance, and the accuracy of convictions as systemic issues of significant public importance, not limited to matters affecting an individual case or defendant.

According to the First Circuit’s description, Moffat was convicted of first degree murder in state court.  During his trial, local prosecutors provided him with a redacted FBI 302 report.  The FBI report recounted a witness’s repetition of a conversation in which another witness described the murder at issue, including that witness’s and Moffat’s presence at the murder.  This conflicted with the government’s theory, on which it obtained Moffat’s conviction, that Moffat was alone, and potentially implicated the witness who claimed to have been present for the murder.  In fact, Moffat’s contention was that the witness who apparently admitted to being at the scene, according to the story in the 302, was the actual killer.

While serving a life sentence for the murder conviction, Moffat made a Freedom of Information Act request for an unredacted copy of the report and other documents about Moffat and his involvement in the murder.  The FBI initially claimed that it had no documents and denied the request, including through administrative appeals of the denial.  Following those appeals, Moffat filed an action in the District of Massachusetts seeking to force the FBI to comply with his requests.  Once sued, the FBI “found” and produced additional documents (apparently, it justified its earlier failure to find the documents on its practice of conducting less thorough searches until it is actually sued!).

The versions of the 302 report that the FBI ultimately produced were more heavily redacted than the copy that Moffat already had.  After making its production, the FBI moved for and obtained summary judgment dismissing the action (the District Court Judge who dismissed the action is the same former prosecutor who is presiding over the Bulger trial).

Among the issues before the First Circuit was DOJ’s reliance on a FOIA exception under which release of information might “constitute an unwarranted invasion of personal privacy.”  The First Circuit found that privacy interests of third-party informants, FBI personnel, and people merely mentioned in the interview outweighed what it viewed as a non-existent public interest in the release of the information.  In a decision that is devoid of any appreciation of the fact that Moffat’s request went to claims of actual innocence, and thus to his life imprisonment and the possibility that another who was responsible was never held to account for the murder, the First Circuit quoted an earlier decision to hold that “the innocence or guilt of a particular defendant tells the Court nothing about matters of substantive law enforcement policy that are properly the subject of public concern.”

This statement, especially in a murder investigation, is highly dubious.  But even if true, the importance of whether a particular defendant is guilty or innocent as a general matter is not the same issue as the importance of whether the law-enforcement and judicial systems produced a conviction of an innocent person in a particular case.  Maybe it did or maybe it didn’t in Moffat’s case.  But exploring whether those systems failed, resulting in a life sentence, in the face of a redacted government report that on its face suggests an incorrect theory of prosecution, is undeniably of great public concern.  Focusing only on the question of Moffat’s guilt or innocence, as opposed to the societal issue of a system that produced a possible incorrect conviction leading to a life sentence, the court further wrote that “Moffat’s only discernible interest in the requested information is to challenge his murder conviction, and he has failed to connect his deeply personal stake in this information to a larger governmental function.”  Given all that goes into a murder investigation and prosecution, and the stakes of such proceedings, one would think that ascertaining and adjudicating guilt or innocence of a defendant involves more than something “deeply personal” to the defendant, and implicates broader societal interests.  In any event, where the government is choosing to keep hidden information in a document that, according to the First Circuit’s own opinion, it first tried to claim it did not have, and that casts doubt on the prosecution’s theory of conviction, there is an undeniable public interest in learning whether the system functioned properly or erred, and why.  When faced with the common question of the public’s interest in the government’s activities, defense counsel would do well to frame the interests at stake in such systemic terms, focused on the legitimacy and accuracy of the systems at play, no matter how strongly we may believe (correctly) that the interest in determining an individual defendant’s guilt or innocence should be a matter of sufficient public interest in its own right.

There is also another public interest at play – and timely in light of the Bulger trial – that defense counsel should not be shy about invoking.  The Bulger trial should serve as a cogent reminder to all involved in the criminal justice system of the danger of mindlessly deferring, simply by virtue of their positions as representatives of the federal government, to the presumed judgment, competency, and honesty of federal law enforcement and prosecutors.  While the former-prosecutor judge has curtailed the defense’s ability to rely on such information, the Bulger saga is marked by extraordinary government corruption and misconduct, including direct participation in murder.  One need only speak the names John Connolly, Paul Rico, and John Morris to emphasize the danger in blind reliance on the faithfulness of government agents (and that is without even getting into the government’s astonishing use of witnesses such as John Martorano, whose testimony the prosecutors paid for with a 12-year sentence for 20 confessed murders and $20,000 in cash).  In appropriate cases, and Moffat may well have been one, defense counsel should not hesitate to rely on the strong public interest in ensuring that prosecutors, FBI agents, and other government officials are not simply taken at their word when they say such things as “we don’t have documents,” “requested information is not exculpatory,” or “undeveloped privacy issues are at stake.”

May 24, 2013 – Chambers USA again recognized PSD’s Barry Pollack as a leading practitioner in litigation.  Survey responses referred to him as “an authority on white-collar crime and government investigations” with significant recent work on Ponzi scheme matters, which has included the representation of victims and those accused of recruiting investors.

PSD partner Joshua Solomon was quoted in an April 25, 2013 article on the RICO and bribery indictment filed against former probation commissioner John O’Brien.

by Peter Duffy

Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction states that return of a child wrongfully retained or removed from his or her home country is not required if the respondent opposing the return establishes that “there is a grave risk that [the child’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”  Two recent cases from the District of Massachusetts highlight the role expert testimony can play in establishing the degree of psychological harm, if any, a child faces if returned to his or her home country.

In a recent March 13, 2013 decision in the case of Mlynarski v Pawezka, Magistrate Judge Kenneth P. Neiman ordered a child returned to Poland despite his respondent mother’s claim that the child faced a “grave risk” of harm if returned.  Magistrate Judge Neiman noted that the mother had failed to proffer any expert evidence to support her claim as follows:

Respondent has not alleged that A.M. suffers from a traumatic stress disorder or is recovering from such a disorder.  Neither has Respondent proffered any expert evidence or other testimony to support her contention that A.M.’s return at this time would expose him to a grave risk of psychological harm.  At most, Respondent introduced some letters from neighbors and friends which attest to her being a good mother. . . .  The court is more than willing to accept those attestations, but Respondent’s favorable qualities as a mother do little to demonstrate that A.M. would face a grave risk of harm were he to return to Poland.  To the contrary, as she herself testified, not only is A.M. bilingual but Respondent has family who continue to reside in Poland, including her mother, sister, grandmother, aunt and uncle.

The recent case of Felder v. Ponder et al. also concerned a respondent’s claim that a child faced a “grave risk” of harm if returned to her home country, Switzerland.  Lawyers for respondents had argued that the girl at issue had been suicidal and a return to Switzerland could exacerbate the problem.  An expert for the left-behind mother testified that the girl overdosed on Xanax and aspirin, after complaining about anxiety and headaches, without any persuasive signs of suicidal tendencies.  In the middle of the trial, the court ordered that respondents refrain from any further interference with the mother’s exercise of custody rights, thereby returning the child to the mother before returning the child to Switzerland.  The Felder case settled just before the end of trial in January 2013 on terms calling not only for the child’s immediate return to her home country but also on a substantial six-figure payment to the mother to reimburse her for expenses seeking the return of her daughter.

In both Mlynarski and Felder, a child was ultimately returned to a country of origin, so the results in these cases can perhaps be best explained in terms of the general rule established by the Hague Convention favoring return of wrongfully removed children.  The cases also highlight, however, the role of expert testimony for both petitioners and respondents in Hague Convention cases.  Because respondents opposing the return of a child to his or her home country bear the burden of proving, under Article 13(b), a “grave risk” of harm by clear and convincing evidence, respondents like the one in the Mlynarski case can be affected most by the failure to retain a solid expert.

by Barry Pollack

Last week, in United States v Michaud, the First Circuit forgave FBI agents who violated the Fourth Amendment by illegally placing a GPS device on a vehicle.  The court distinguished between  law enforcement using “new investigative methods in the face of uncertainty,” which is bad, and law enforcement relying on “clear and settled principles to install a [new technology] instead of [an old technology], and then to monitor it for over a week,” which is apparently good.  This decision may cause law enforcement to feel more empowered than they are to rely on faith when violating privacy rights.

For several reasons, the FBI and other law enforcement agents should not embark more freely on police-state inquisitions just yet.  First of all, other court rulings suggest that the good faith exception to the exclusionary rule does “not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw.”  Second, the parties in Michaud did not sufficiently build a record concerning the FBI’s ability to seek a warrant within the eleven-day monitoring period even if one were not available at the start.  Third, nothing in Michaud relieves state actors of potential financial liability, in a Bivens or Section 1983 action, for those constitutional violations.  Faith is not enough by itself to avoid the exclusionary rule.. Good faith is the standard.

Limitations on the holding in Michaud can be found in its conclusion:

[The] good-faith exception is not a license for law enforcement to forge ahead with new investigative methods in the face of uncertainty as to their constitutionality. “The justifications for the good-faith exception do not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw.” …The good-faith exception is, however, properly applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied

By Barry S. Pollack

Deja vu all over again, again.  This question: “Should a Federal Prosecutor Fictionalize a Cooperating Witness and Leave a Judge in the Dark?”, seems either rhetorical or easy enough to answer.  But in the District of Massachusetts, many simple questions generate complex, incomplete, or surprising answers.  Wild answers may have been heard, with more yet to come.

Take for example, the same AUSA who sat on a board of a penny stock company while investigating a penny stock company that used the same outside counsel, described in part 1 of this 3 part series, and the same AUSA who facilitated conflicts of interest with a recent FBI retiree described in part 2.  Wild as it may seem, so many simple questions come to mind.  Is it wrong, if the AUSA’s choice of a cooperating witness admitted perjuring himself at the start of an investigation, for the AUSA to represent to a federal sentencing judge: “So his cooperation was from the very beginning, it was immediate, and to the sense of the government it has been full and cooperative in each vein”?  Is it wrong for an AUSA, when addressing the sentencing judge, to describe the cooperating witness as someone who engaged in only modest stock sales, while leaving out about $749,000 worth of problematic sales from the calculation?  Is it wrong for an AUSA, when addressing the sentencing judge, to omit that the cooperating witness claimed to forget details about that $749,000 stock sale because he smoked too much marijuana at the time?  Is it wrong for an AUSA, when addressing the sentencing judge, to withhold that, at a Massachusetts Securities Division deposition, the cooperating witness had testified falsely under oath over several hours?  Is it wrong for an AUSA, when addressing the sentencing judge, to label the cooperating witness “essential” to the government’s ability to indict, when other witnesses had already provided the government with the roadmap to the offense?  Is it wrong for an AUSA, when addressing the sentencing judge, to omit the fact that the cooperating witness used the identification of a deceased man for various personal purposes and gave the fake identification to a family friend (a friendship through law enforcement connections) to start his life over and escape a criminal history?  It is one thing for an AUSA to disregard ambiguous evidence to provide leniency for a deserving defendant. When an AUSA is essentially buying testimony from a cooperating witness, however, fact bargaining becomes more problematic because of fundamental rights of other targets.  If it reaches a point that the AUSA recommends a 2 year sentence, but through the fictionalization process a federal judge imposes a mere 6 month sentence on the cooperating witness, has the government created a fictional witness who may appear more credible than he should to a jury hearing a case later against another target?  Putting simpler questions aside, under such circumstances, who is more fictional, the family friend with the fake identification or the cooperating witness as portrayed by the federal prosecutor for the eyes of a federal judge? Wild as it seems, something is obviously more than a bit unjust about placing a federal judge in the position of sentencing an essentially fictional defendant who may testify later against others.

As if this complex web of fictionalizing a government witness were not enough, prior to this sentencing, the AUSA’s potential conflicts of interest had been called to the attention of his front office.  Yet United States Attorney Carmen Ortiz still permitted the AUSA to handle the sentencing, at which the AUSA seemed challenged to describe the cooperating witness in a non-fictional way. Wow.  Or should I say: Wild.

These and related issues have been elevated to OIG, OPR, Attorney General Eric Holder, Senator John Cornyn of Texas, and Congressman Darrell Issa of California.  Back to my original question:  “Should a Federal Prosecutor Fictionalize a Cooperating Witness and Leave a Judge in the Dark?”  Stay tuned for answers.  Wild or normal.

As for a final rhetorical or simple question:  Under these circumstances, can folks respect an AUSA or the United States Attorney for the District of Massachusetts the way such offices may deserve to be respected?