With the most serious charges now dismissed against the remaining Dewey & LeBoeuf defendants, the Manhattan District Attorney’s Office has lost critical leverage in a case with only three remaining criminal counts.
Acting Supreme Court Justice Robert Stolz on Friday dismissed all grand larceny counts against former Dewey chief financial officer Joel Sanders and former executive director Stephen DiCarmine. Those were the most serious charges in the indictment that required prison time upon conviction.
The charges remaining are scheme to defraud, securities fraud and conspiracy. Stolz declined to dismiss the lower level felonies and misdemeanor, which do not carry a mandatory prison sentence.
The ruling is another narrowing of the prosecution’s now slim case against the Dewey & LeBoeuf executives.
In March 2014, the district attorney initially brought more than 100 criminal counts against four Dewey defendants.
Multiple lower-level charges against all four were dismissed last year amid a mistrial ruling in October involving DiCarmine, Sanders and former chairman Steven Davis.
And in the last two months, Davis and former client relations manager Zachary Warren, whose case was severed, have signed deferred prosecution agreements that will allow their charges to be dropped in time.
The now-dismissed grand larceny charges amounted to 15 counts in the indictment. They related to Dewey’s refinance of debt in 2010, which included $150 million private bond offering of securities with insurance companies and a $100 million revolving line of credit with banks.
The prosecution alleged that to obtain this financing, Dewey executives and others misrepresented the firm’s financial condition to investors and lenders.
Stolz, ruling from the bench Friday, said he did not believe the evidence was sufficient to find that when the defendants obtained proceeds from the private placement or revolving line of credit, they acted with larcenous intent.
He said he found it informative that a diligent and attentive jury was unable reach the prosecution’s conclusion after long deliberations.
Outside of court, Austin Campriello, a Bryan Cave partner who represents DiCarmine, said, “Now the judge has dismissed the heart of the People’s case.”
Campriello told reporters that he hopes the prosecution continues to engage in a reassessment of the case, like it did with Davis and Warren. “We want the same,” he said. “We want a deferred prosecution agreement.”
“We’ve gone from 106 [counts] to three,” Campriello added.
Sanders’ attorney, Andrew Frisch, who runs his own white-collar defense boutique, told reporters, “We’re heading in the right direction,” noting the dwindling number of counts.
What happens next “falls in their court,” he said about the district attorney. “The prosecution has to reassess its position.”
A spokeswoman for the office of Manhattan District Attorney Cyrus Vance Jr. declined to comment Friday.
The government already has offered plea deals to DiCarmine and Sanders that entailed pleading to a Class E felony. They did not accept.
The indictment’s grand larceny charges required a minimum sentence of one to three years and a maximum sentence of up to 25 years upon conviction.
The maximum sentence for first-degree scheme to defraud and securities fraud under the Martin Act, both class E felonies, is up to four years but the minimum is no time. The maximum for fifth-degree conspiracy is one year and the minimum is zero.
Davis signed a deferred prosecution agreement in January, which bars him from practicing law in New York for five years and from appearing before the SEC.
His attorney, Elkan Abramowitz, partner at Morvillo Abramowitz Grand Iason & Anello, said, “We maintained from the beginning that we thought that the larceny charge was misplaced because they could not prove any intent on the part of the defendants to steal the money. It was misguided theory to begin with, and we’re grateful that the judge recognized that.”
Some criminal defense experts and former prosecutors told the Law Journal they expected Vance’s office to go forward with a retrial against Sanders and DiCarmine, which is scheduled in September.
Attorneys noted that some cooperating witnesses, including former finance director Francis Canellas and former controller Thomas Mullikin, have already pleaded to felonies.
“At this juncture, the district attorney is too invested in this prosecution to drop the case or defer prosecution,” said Roger Stavis, a former state prosecutor and a criminal defense attorney at Gallet Dreyer & Berkey.
“Having demanded felony pleas from the key cooperating witnesses, it is unlikely that the remaining defendants will be offered anything less than that in a plea bargain,” Stavis said.
In light of the fact some people have pleaded guilty to the crimes charged, defense attorney Charles Stillman said, “it would be very surprising to me” if the district attorney would now dismiss the case or offer deferred prosecution agreements to people who have already been tried.
“I think they’re going to go to retrial,” said Stillman, a partner at Ballard Spahr.
But if the prosecution doesn’t think it can win the case as it currently stands, Stillman said, “Somebody has to say, ‘let’s end this, peace with honor,’” and offer deferred prosecution agreements.
John Zach, a former federal prosecutor and a now a partner at Boies Schiller & Flexner, said that to walk away without a felony conviction would be perceived as an unsuccessful outcome for the prosecution.
“This is another setback after significant other problems with the prior trial,” Zach said about Friday’s ruling.
With the narrowing of the case to felonies that carry no mandatory jail time, the prosecutor’s leverage is reduced, said Ira Lee Sorkin, a white-collar defense lawyer and partner at Mintz & Gold. Given that, he said the remaining defendants are unlikely to contemplate any deal unless it’s deferred prosecution.
Baker & Hostetler white-collar partner John Moscow, a former frauds bureau chief at the Manhattan DA’s office, said prosecutors still have a viable and serious case to make, despite the winnowing down of the counts. What remains, he said, is more manageable.
“I see this as the judge avoiding a difficulty in charging. The charge is simpler, it’s more focused,” Moscow said.