Yardsticks of Success?

Just over the past 15 months, Ryan has endured two withering letters from subordinates, a string of attorney departures and two embarrassing Justice Department investigations � one looking at his firing of a top administrator, the other into the handling of a drug case that featured a Drug Enforcement Administration agent melting down on the witness stand and pleading the Fifth last fall.

All of that is now being pushed in front of a group of Justice Department evaluators performing a comprehensive audit of the office � a process done every three years, but which has gained a heightened sense of importance thanks to the soap opera of discontent in Ryan’s office.

The sharply worded letter by Assistant U.S. Attorney George Bevan Jr. expresses critics’ hope that the review � known as EARS, since it’s performed by the Evaluation and Review Staff of the Executive Office of the U.S. Attorney � will take Ryan to task for dozens of attorney departures and rancor among some longtime prosecutors, perhaps to the point of affecting his expected renomination later this year.

But while Bevan’s letter to the head of the Executive Office harshly judges Ryan’s management and blames him for “an unprecedented exodus” of attorneys that’s left the office “in crisis,” it says little about how Ryan is performing his job.

That’s a more complicated question than whether Ryan rubs some the wrong way. Judging by the raw number of cases filed under Ryan, whatever discord there is within the office hasn’t much hindered the development and filing of cases. Information compiled by a Syracuse University data service indicates that while some categories of prosecutions, including white-collar cases, have declined, others are booming. Reflecting a push to combat violent street gangs, for example, the number of organized crime filings quintupled between 2003 and 2005.

Ryan’s spokesman and one of his top prosecutors said they can’t vouch for the Syracuse numbers, and don’t know how they were compiled. Mark Krotoski, the acting criminal chief, said last week that the office doesn’t track the numbers itself, but disputed the apparent 50 percent drop in white-collar cases since 2002. By comparison, national white-collar filings fell by 20 percent during that period.

Krotoski said he believes that white-collar prosecutions are not down in the Northern District, and even if they are, that wouldn’t reflect the quality of cases being brought.

“I question a numeric approach to fighting crime, and we have a track record that speaks for itself,” Krotoski said.

HARSH ASSESSMENTS

Lawyers in and out of the U.S. attorney’s office were surprised by Bevan’s Jan. 13 critique, and not because of the strong language � through 24 years in the Northern District, Bevan has become known for sending off-the-cuff communiques within the office.

What is striking, they say, is that Bevan took those complaints outside the office, taking the risk of making it look bad to outsiders. Bevan himself would not comment on the letter, nor would he provide a copy. “I can’t talk about that,” he said when reached by phone.

In his letter, the prosecutor blames top office management for a string of departures: “The departed AUSAs include top-notch, experienced prosecutors whom I believe would have remained in the office but for the gross mismanagement of the office.”

Bevan’s letter doesn’t describe what those management missteps might be. But, he wrote, the defection of more than 40 prosecutors from the 85-lawyer criminal division since 2002 “has caused serious long-term damage to the office and its infrastructure.” He also asked that EARS reviewers contact departed AUSAs to ask about management.

A Marine platoon commander in Vietnam, Bevan is known as an aggressive prosecutor specializing in gang, gun and drug cases. Lawyers within the office said that while Bevan has always been extremely loyal to the department, he has felt alienated for some time, since Ryan demoted him from a supervisory position shortly after being appointed.

And last year, while Bevan was on leave after suffering a heart attack, prosecutors released a key defendant in one of Bevan’s gang cases.

Ryan spokesman Luke Macaulay said Ryan didn’t know about the letter until last week. But its criticisms were not new.

A letter similar to Bevan’s was sent around the office by former AUSA John Hemann as he left in January of last year for a partnership at Morgan, Lewis & Bockius.

“People in the office � lawyers and staff � are unhappy and frustrated. People outside the office are critical and, increasingly, derisive,” Hemann wrote.

Acting criminal chief Krotoski said last week that attrition in the Northern District is about the same as in other offices � approximately 10 percent per year. “We have not seen the track record of this office suffer because of that,” he said. And Macaulay blames departures on financial incentives, like lucrative law firm partnerships and retirement packages for career prosecutors.

But Rory Little, a professor at Hastings College of the Law and a former federal prosecutor who is generally supportive of Ryan, said it’s unrealistic to say office turnover is unrelated to a white-collar decline, especially since the securities and white-collar sections have seen some high-profile personnel losses.

“A change in personnel, it doesn’t matter why the change is, means things are going to be disrupted,” he said.

PAR FOR THE COURSE?

While the nexus between management complaints and performance isn’t always clear, recent history suggests that a San Francisco U.S. attorney will become known for one or the other.

Robert Mueller, who led the office in the late 1990s before becoming FBI director, is still spoken of with reverence; his predecessor, Michael Yamaguchi, was run out of office after a series of problems.

While these two represent extremes, Joseph Russoniello � the last Republican appointee thrown into the difficult role of San Francisco U.S. attorney � said public perception is always a concern.

“You basically work a little harder to make sure that reporters, instead of looking at how I ran my office, looked at the cases I was bringing,” he said recently.

Ryan’s failure to accomplish that has been attributed to a range of things. For example, Russoniello says, U.S. attorneys have become increasingly constrained by the Justice Department.

“It’s very difficult now for the U.S. attorney, as I understand it, to have much of a say in the cases that are brought,” he said. “Everything is micromanaged from Washington.”

Others point directly to Ryan’s temperament: they say the transition from a state judgeship to the hornet’s nest of the federal building made him hunker down shortly after taking office.

Indeed, criticism can come from all angles, like well-publicized courtroom barbs from judges Charles Breyer and Jeffrey White last year, along with more private avenues: In 2004, Judge Marilyn Hall Patel complained about Ryan’s management of the office to a high-ranking Justice Department official, said sources familiar with the communication. Patel didn’t return calls seeking comment.

Over the past two years, lawyers in the office say Ryan has come to rely on his top deputy, Eumi Choi, for much of his communication with other prosecutors. And in recent months, Choi has been at the center of several troubling episodes for the office.

SECOND IN COMMAND

“Under the Ryan administration,” Bevan wrote in his letter, “many good people have been badly mistreated, and more particularly, by his first assistant/criminal chief, Eumi Choi, and there have been abuses of management’s authority, and instances of lack of integrity and candor.”

Bevan did not specify what those alleged abuses were, but Choi � who has been out of town on a family emergency and was unavailable to comment for this story � has certainly taken her share of hits recently.

As the author of a letter firing the office’s top administrator last year, Choi has been at the center of an investigation by the Office of Special Counsel, a federal whistle-blower agency probing whether the administrative officer, Caroline Krewson, was improperly terminated for criticizing Choi’s and Ryan’s management.

According to a copy of his letter reviewed by The Recorder, Bevan also sent it to Ira “Butch” Perkins, the OSC investigator looking into Krewson’s complaint “for whistle-blower protection.”

More recently, Choi has been in the middle of a separate probe of whether prosecutors mishandled a drug case when a DEA agent gave conflicting trial testimony before invoking his Fifth Amendment rights.

That situation has been a persistent, and potentially expensive, bete noire for the office, thanks to a defendant whose case was dismissed as a result of the agent’s meltdown � and to Breyer, who vocally expressed his irritation with the situation last fall before ordering a Justice Department investigation.

The dismissed defendant, Nabil Ismael, is now trying to recover attorney’s fees. In connection with that attempt, Breyer recently ordered Ryan, Choi and four other prosecutors to be deposed by defense lawyer Ian Loveseth.

Loveseth claimed in court filings that prior to dismissing the case, Choi made a plea offer to his client contingent on the defendant signing a statement that the DEA agent did not lie on the stand.

Choi has denied that, but the government � which rarely pays out fees in such cases � seems to feel there’s a problem. Sources with direct knowledge of the case say the L.A. U.S. attorney’s office, which is now handling it, has been authorized to settle the defendant’s fee claims for up to $50,000. L.A. Assistant U.S. Attorney Patrick McLaughlin, who’s in charge of the case, did not return phone messages requesting comment). McLaughlin’s investigation has also been taken seriously by the assistant U.S. attorneys who were handling the case: at least two of them have retained counsel to represent them in the probe.

Office spokesman Macaulay said Ryan stands by Choi. In a statement delivered via Macaulay, Ryan said Choi “has not only my respect and support, but also of those who know her and work with her on a day-to-day basis.”

CRUNCHING NUMBERS

Like other criticisms, those aimed at Choi generally involve management and personnel issues � with the notable exception of the controversial plea deal, few call into question the development and execution of cases.

And from the outside, assessing such things with statistics is treacherous � numbers are difficult to compile, hard to analyze, and don’t offer insight into the quality of cases being brought.

Ryan’s office is quick to make those points. And while Ryan said, in an e-mail sent via his spokesman last week, that statistics requested by The Recorder aren’t “readily available,” he also said he knows his office is performing well “based on the quality and quantity of the cases we are bringing.”

Ryan said that numbers don’t provide an accurate picture of the office’s efforts. He pointed, for example, to the BALCO steroids case, which counts as just one case and led to only four convictions but, he argues, also pushed Congress and Major League Baseball to address the problem.

He also points to Operation Copycat, a nationwide crackdown on game, software and movie piracy. Though the operation has thus far accounted for just four indictments here, and thus counts as just four “cases, ” Ryan said the impact of the probe “ is international in its scope.”

Still, the Syracuse data show that white-collar prosecutions declined from 181 in 2002 to 93 last year.

Little, the Hastings professor, says this is likely due, in part, to shifting office priorities since Ryan took over.

“Kevin has made it a priority, or a focus, to prosecute violent crime in this community,” Little said. “If you’re going to up your emphasis in one area, you’re going to go down in another area.”

Defense lawyers generally agree, and say they are seeing fewer, and less complicated, white-collar cases than in the past.

“My perception is that there are much fewer cases being brought, and the cases that are being brought are much less complex,” said Cristina Arguedas, a partner at Arguedas, Cassman & Headley in Berkeley and a top white-collar defense lawyer. She echoes other defense lawyers when she says that most of her big cases these days are out of town, a trend she attributes to a declining amount of white-collar work emanating from the Northern District.

But at the same time, defense lawyers and prosecutors � almost without exception � speak highly of the white-collar unit’s management over the past few years, first Miles Ehrlich from 2003 to 2005 and, since he left for private practice in Berkeley, Michael Wang. Both are known as effective prosecutors comfortable with complex cases.

While the reasons for a white-collar decline are not clear, prosecutors insist that if there is a decline, it isn’t a reflection of the office’s performance or priorities.

“Numbers are for someone else to argue,” Krotoski said. “We have plenty of work to do.”