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DOJ Public Integrity Section Keeps the Corruption Cases Coming
The National Law Journal
Earlier this month, a bail bondsman in Virginia was sentenced to 2 1/2 years in prison for bribing public officials as part of a scheme to pick up new clients. And in October, a grand jury in Utah indicted a long-time FBI agent on obstruction charges for allegedly trying to thwart a fraud investigation involving a business partner.
There's been no slowdown in corruption cases coming out of the U.S. Justice Department's Public Integrity Section, where more than two dozen lawyers investigate and prosecute allegations of government official malfeasance across the country. Public Integrity last year charged 53 officials and private citizens, up from 39 in the previous year, according to the section's annual report to Congress. The section more than doubled its number of trials in the past two years heading to court 28 times.
"The place is humming. People are in each other's offices at night, knocking things out," Jack Smith, the Public Integrity chief, said in an interview last week at Main Justice. "We've got it up to the speed it should be running."
Despite an array of successful prosecutions, Public Integrity's high-profile losses including the Ted Stevens and John Edwards cases have fostered a perception of a beleaguered section that is rebuilding and still grasping for a big win to establish traction, several white-collar defense lawyers said. "Let's face it, the reason Public Integrity has the cachet it does is because at one time they were doing big cases, big targets," DLA Piper Washington litigation partner Peter Zeidenberg said. "That's part of their reputation."
The case against Stevens, charged in Washington with failing to disclose gifts, collapsed in April 2009 amid allegations of prosecutorial misconduct and led to a shake-up in the top ranks of Public Integrity. DOJ abandoned campaign-finance charges in North Carolina against Edwards, the former Democratic presidential contender, this summer after a mistrial.
The Edwards debacle came just months after a jury in Alabama found six defendants including a sitting state senator not guilty in a bribery case tied to a casino gambling bill.
"The success of the section is characterized by one or two cases that attract media attention, but those cases are not representative of what the section is doing as a whole," said MoloLamken partner Justin Shur in Washington, who left Public Integrity as a deputy chief in January. "The section is trying more cases than it ever did before, and winning more than ever before."
Smith's boss, Assistant Attorney General Lanny Breuer, said that when he took over the leadership of the Criminal Division in early 2009 "things were as raw and as tough as they could be" in Public Integrity. Now, Breuer said, "on any level if you look at Public Integrity over the last two years really, since Stevens it's been a stunning, stunning success."
Public Integrity prosecutors last year landed trial convictions against 13 defendants in cases across the country, including Indiana, Massachusetts, Puerto Rico and Virginia. "We are always ready for a trial," said Smith, who took over Public Integrity in the aftermath of the botched prosecution of Stevens. "If you show up, we're going to show up, too."
In one case, a jury in U.S. District Court for the District of Columbia convicted a former House of Representatives staffer, Fraser Verrusio, for crimes associated with the Jack Abramoff lobbying scandal. Verrusio, prosecutors said, unlawfully accepted an all-expenses paid trip to New York knowing that the source wanted his help inserting amendments into a federal highway transportation bill. (Verrusio's attorneys, including a team from Baker Botts, are fighting in the U.S. Court of Appeals for the D.C. Circuit to overturn the conviction.)
THE RING CASE
On November 15, the D.C. Circuit will examine the merits of another Abramoff-related Public Integrity prosecution the case against former lobbyist Kevin Ring. A jury in Washington convicted Ring in 2010 the first case ended in a mistrial on charges that included conspiracy, honest services fraud and paying illegal gratuities.
The case has drawn considerable attention in the white-collar defense bar as the litigation gives the D.C. Circuit the chance to apply a U.S. Supreme Court's ruling in 2010 that narrowed the scope of honest services fraud charges. In Ring's appeal, the National Association of Criminal Defense Lawyers and the Center for Competitive Politics filed a joint friend-of-the-court brief saying the trial judge allowed prosecutors too much flexibility in proving the case.
Brown Rudnick partner Paul Enzinna, representing the two groups, said a ruling in favor of DOJ "threatens to chill, or worse, criminalize, an extraordinarily broad range of conduct that is engaged in on a daily basis by millions of Americans" who use hospitality to influence clients.
This summer, Public Integrity prosecutors notched another victory in a bribery and money laundering probe rooted in defense contracts in support of the war in Iraq. A jury in West Virginia convicted a U.S. Army sergeant who was in charge of contracting at a U.S. base in Kuwait. To date, 19 people have pleaded guilty or been found guilty at trial in the investigation. "I think that's what the taxpayers want us doing," Smith said about the success in the case.
Breuer and Smith said they want Public Integrity to have a solid reputation in the defense bar for trial work putting aside using the number of wins, losses and overall charges filed to measure success. "If you want a decent metric for a prosecutor, it's how many cases they've tried," Smith said. "It tells you how they go about their job."
One benefit of increased trial litigation, Smith said, is the creation of greater trust between prosecutors and defense lawyers in the early stages of a case during plea discussions. Some defense lawyers, Smith said, were calling bluffs on plea offers when he first arrived in Public Integrity in 2010. "People need to understand that we're willing to bring important cases," Breuer said last week. "We're not scared to go to trial on those cases. We're going to win the vast majority of them. We won't win them all, nor should we."
Patton Boggs litigation partner Robert Luskin, who often represents clients in public corruption investigations, said that after the Stevens case failure he assumed one take-away would have been Public Integrity's reluctance to take on a big case. "My sense is that in the day-to-day interaction it's business as usual, and they're not looking over their shoulder or pulling their punches," Luskin said.
Several white-collar defense lawyers in Washington lauded Public Integrity for making a strong effort to more swiftly resolve older investigations and keeping an open door for counsel before making charging decisions. "I think the lessons of the Stevens case have been learned at some level," said Stevan Bunnell, the managing partner of O'Melveny & Myers' Washington office and a former Public Integrity prosecutor. "There's a desire to understand if there are problems and understand that early so it doesn't happen in trial or after trial. That's a wisdom that hopefully will stay around."
This article originally appeared in The National Law Journal.