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Government Misconduct Blog; Should a Federal Prosecutor Fictionalize a Cooperating Witness and Leave a Judge in the Dark? (Part 3 of a 3 part series on simple questions)

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?