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Government Misconduct Blog; Should a Federal Prosecutor Facilitate Conflicts of Interest Contrary to 18 U.S.C. 207? (Part 2 of a 3 part series on simple questions)

by Barry S. Pollack

Deja vu all over again.  This question: “Should a Federal Prosecutor Facilitate Conflicts of Interest Contrary to 18 U.S.C. 207? ”, seems either rhetorical or easy enough to answer.  But in the District of Massachusetts, many simple questions generate complex, incomplete, or surprising answers.

Take for example, the same AUSA who sat on a board of a penny stock company, described in part 1 of this 3 part series.  According to emails and invoices obtained during the limited discovery in a criminal case, within weeks after his retirement from the FBI, a former national supervisory agent met with both FBI case agents and the AUSA, people the recent FBI retiree knew directly or through connections.  In a July 15, 2009 email, the recent FBI retiree stated in pertinent part: “I will meet with the FBI next week in an effort to have the Supervisor (who I know very well, move the case along).”  In a July 29, 2009 email, he stated “the meeting with the FBI went very well yesterday” and at the next meeting the FBI agents would “bring the AUSA along.”  Then, in an August 6, 2009 email, he stated that the “[m]eeting went well today at the AUSAs office.” (emphasis added)  The FBI retiree submitted bills to the subject company reflecting his meetings with the FBI and U.S. Attorney’s Office in July and August 2009 (within a few months of holding his official FBI position), including such time entries as “meeting with FBI Boston office re” targets and “emails/phone calls to set up meeting with FBI/US Attorneys’ office.” (emphasis added)  The memorandum of interview of a former board member of the company confirmed that the FBI retiree met with FBI case agents and the AUSA during the restricted time period under 18 U.S.C. 207.  A July 29, 2009 email reflects the participation of a lawyer who served alongside the AUSA as a co-fiduciary to Evermedia.  In an email dated July 23, 2009, the FBI retiree indicates his willingness to turn the FBI on an investor adverse to the subject company: “Then I might be able to get the FBI interested in (the investor) for at least a peak into them.”

As if this complex web of 18 U.S.C. 207 conflict-of-interest issues were not enough, the AUSA served on a board of a different penny stock company alongside the same outside counsel working with the FBI retiree.  Wow.  Yet when called to the attention of United States Attorney Carmen Ortiz, the AUSA was still permitted to handle portions of an ensuing prosecution.  Wow.

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 Facilitate Conflicts of Interest Contrary to 18 U.S.C. 207?” Stay tuned for answers.