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A three-judge panel in the District of Massachusetts has declined to impose disciplinary sanctions on Boston federal prosecutor Jeffrey Auerhahn for judicial findings that Auerhahn’s withholding of exculpatory evidence prompted the release of purported mobsters from prison. In a Sept. 15 order in In the Matter of Auerhahn, a majority of the panel concluded that the allegations of professional misconduct were not proven by clear and convincing evidence. The panel consisted of District of Massachusetts Judges George O’Toole Jr., William Young and Rya Zobel, but it did not indicate which two formed the majority. The bar counsel had asked the court to suspend Auerhahn from practicing law for two years. The case came about because of a June 2007 letter sent by Chief Judge Mark Wolf of the District of Massachusetts to the bar counsel. Wolf found that Auerhahn failed to disclose that a government witness had recanted some statements about the role two alleged mobsters played in a Boston murder. Wolf found that Auerhahn’s misconduct occurred during the prosecutions of Vincent Ferrara and Pasquale Barone. The conduct occurred between 1991 and 1993 and was disclosed to the court in August 2002. In 2003, Wolf conceded to a request by then-U.S. attorney for the District of Massachusetts Michael Sullivan to let the U.S. Department of Justice’s Office of Professional Responsibility investigate first before Wolf filed a bar counsel complaint. In 2005, the OPR found that Auerhahn had acted in reckless disregard of discovery obligations by failing to document the statements of a cooperating witness, Walter Jordan. The OPR also found that Auerhahn exercised poor judgment by failing to comply with a court order to submit his notes from meetings with Jordan. Sullivan privately disciplined Auerhahn with a written reprimand. After the bar counsel filed its petition against Auerhahn in August 2009, the matter was referred to Wolf in his role as chief judge. Wolf turned the case over to Judge Joseph Tauro, the senior active judge in the distinct, who tapped the panel. The panel denied Auerhahn’s motion to dismiss in January 2010. In July, it pared the bar counsel’s petition to two separate misconduct instances. The first was failing to preserve and disclose exculpatory evidence to defense counsel in the Barone and Ferrara prosecutions. The second was failing to produce a trial outline that contained notes about his 1991 meeting with Jordan concerning Jordan’s upcoming testimony, when Wolf first ordered him to do so in 2003. Auerhahn later turned over the trial outline, and explained to OPR that his delay was because Wolf had asked for “notes” and he considered his trial outline attorney work product. The panel heard arguments in the case last December. The panel majority wrote that, based on the evidence, it could not conclude that Auerhahn knew that Jordan had made a certain statement to Boston police department detective Martin Coleman, who was also working on the Organized Crime and Racketeering Section of the New England Strike Force. The so-called “no permission statement” was that Barone had not gotten Ferrara’s permission to kill Vincent James “Jimmy” Limoli in 1985. According to the opinion, Limoli was an associate under Ferrara’s direction in the Patriarca crime family of La Cosa Nostra. “We simply find the evidence too unreliable and inconsistent to meet the standard of proof that we have adopted,” states the opinion. The opinion goes on to say that “the court is not persuaded by the evidence” that Auerhahn ever saw Coleman’s handwritten memorandum about his conversation with Jordan. The opinion notes that it’s unclear when Coleman wrote the memorandum and under what circumstances. The panel majority concluded that the “evidence does not enable us to confidently resolve” the conflict between Auerhahn’s testimony that Coleman didn’t give him the memo and Coleman’s testimony that he did. In addition, the opinion observes that the late discovery of the memorandum in a file cabinet used by Jordan suggests that it wasn’t handled according to normal Strike Force procedures: “If, having seen the memorandum, Auerhahn had some sinister purpose to hide it, the wastebasket would have served that purpose better than Coleman’s file cabinet.” The opinion goes on to state that Auerhahn “can fairly be faulted” for failing to document more carefully what Jordan said to government agents, including him. But the opinion also criticizes Auerhahn for improper note taking of his own meeting with Jordan following Jordan’s meeting with Coleman. According to the opinion, Auerhahn made additions or amendments to a trial outline instead of taking separate notes about the meeting with Jordan: “In the circumstances, that was too casual an approach for him to take to the matter.” That meeting was “a specially called meeting to address a particular issue that might have weakened the prosecution’s case. Auerhahn’s failure to take care to assure that a proper record of the matter was made was a failure of due diligence for which he is appropriately criticized,” stated the opinion. However, want of diligence isn’t the same as sanctionable “intentional avoidance of evidence,” according to the opinion. The panel found that Auerhahn was negligent in his 2003 handling of Wolf’s order about the notes. “In light of the gravity of court orders, and the standards to which we hold attorneys as officers of this Court, particularly in criminal prosecutions, the duty to clarify the limits of a court order is borne by the attorney,” the opinion states. But the panel majority held that “negligence…is not enough here.” Auerhahn’s lawyer, Michael Ricciuti, a partner in K&L Gates’ Boston office, said “We’re very gratified with the result….It really demonstrates that due process is something taken very seriously in this district. They gave us a very fair hearing and wrote a very detailed opinion.” Ricciuti also said that Wolf’s decision to allow the Justice Department to conduct an investigation led to the record that eventually exonerated Auerhahn. “If he did not permit this process to begin, this record wouldn’t exist.” First assistant bar counsel Nancy Kaufman said she believes the bar counsel’s office “had a strong case and the evidence to meet the standard we set, but two of the members of the court disagreed with us.” The bar counsel had argued that the lower “preponderance of the evidence” standard should apply in this case. In a written statement, U.S. Attorney for the District of Massachusetts Carmen Ortiz said she appreciates the panel’s “careful and thoughtful consideration of the issues involved in this difficult matter.” “I am very pleased with this result, particularly for Jeff, who has soldiered on here under very difficult circumstances and can now put this behind him,” Ortiz said. “I will continue to make sure that our office remains committed to complying with our discovery obligations and our overall responsibility, as prosecutors, to pursue justice.” Auerhahn did not respond to a request for comment. Sheri Qualters can be contacted at [email protected].

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