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Defense lawyers for a former political supporter of Kevin Shelley are trying to pry their client from quite a spot, between one big rock and a very hard place. State and federal prosecutors both claim that S.F. real estate agent Julie Lee funneled state grant money to Shelley’s 2002 campaign for secretary of state, and since the spring they have been trying to prosecute her with two simultaneous cases. For her defense team, one of the first orders of business is to try to limit Lee’s legal bouts to one arena — or at least one venue at a time. And if they do it right, they might help Lee avoid a second prosecution all together. This month, lead defense attorney Steven Gruel and his co-counsel plan to ask San Francisco Superior Court Judge Perker Meeks Jr. to let the federal prosecution go first. If he gives them their wish, state double jeopardy laws may block all or most of the state case — regardless of the outcome in federal court. “When [the federal prosecution] is concluded, it will create that double jeopardy bar,” Gruel said. “That’s the point.” And that is just the kind of tactic state prosecutors want to head off. “If the defendant should obtain an acquittal in the federal case, it would bar much of the state’s prosecution, an unacceptable result,” Supervising Deputy Attorney General Ronald Smetana and Assistant DA Davina Pujari argue in a brief opposing Lee’s motion. Granting her request, they say, would be giving her a free pass to forum-shop. Gruel says it’s more about fair play.
THE CHARGES AGAINST JULIE LEEFederal caseMail fraud [Four counts, 18 U.S.C. #&167; 1341]Attempting to tamper with a witness [Three counts, 18 U.S.C. #&167; 1512]State caseGrand theft [Four counts, California Penal Code #&167; 487(a)]Forgery [One count, Penal Code #&167; 470(d)]Embezzlement of Accounts [One count, Penal Code #&167; 424(a)(1)]Embezzlement [One count, Penal Code #&167; 504]Preparing false documentary evidence [One count, Penal Code #&167; 134]Making illegal political contributions [One count, Government Code #&167; #&167; 84301, 91000(a)]Source: Federal indictment, state complaint

“We don’t have any problem stepping into the ring. We just do not necessarily need three opponents,” said Gruel, a former federal prosecutor. “We’d [also] like to keep it as one ring, not two.” In a motion expected to be heard this month, Gruel and co-counsel John Philipsborn are asking Judge Meeks to bar Attorney General Bill Lockyer and San Francisco District Attorney Kamala Harris from prosecuting their case. And if Meeks doesn’t go for that, the defense is asking he at least put the state case on ice until the federal case is over. So far, the state and city are pressing ahead with nine counts against Lee, including forgery, grand theft and embezzlement charges. Federal prosecutors from the Eastern District of California have indicted her on seven counts, accusing her of mail fraud and trying to meddle with witnesses. Gruel maintains that it’s unfair to pursue two prosecutions at the same time “for the same set of facts.” DOUBLE-TEAMING To keep the strategic advantage in the face of the state double jeopardy laws, federal and state prosecutors sometimes agree to prosecute a defendant in state court first. Recently, for example, the Alameda County DA and the U.S. attorney for the Northern District agreed to try sausage factory owner Stuart Alexander together in Alameda County. Accused of murder and attempted murder of two U.S.D.A. compliance officers and two state meat inspectors, Alexander was convicted and sentenced to death. But, noted Deputy DA Paul Hora, who tried the case with federal prosecutor John Laettner, “If the prosecution here for some reason was unsuccessful, then [Alexander] could be prosecuted again in federal court.” While Hora says he and Laettner “worked like bread and butter” together, in Lee’s cases, there doesn’t seem to be nearly so much camaraderie between the state and McGregor Scott, the U.S. attorney for the Eastern District. Scott’s office found out Lockyer and Harris were bringing charges a day or two before the state filed its case, when Lockyer’s office called to give them a heads-up, said Lawrence Brown, the district’s first assistant U.S. attorney, calling it “professional courtesy.” But the Eastern District was close to an indictment, and “our investigation was already pending at the time the state charges came down,” Brown said. “It’s not as if we read the paper, saw the state charged somebody, and only then jumped on the bandwagon. We’ve been there from day one.” Months before, both federal and state agencies had begun looking into Lee and a San Francisco nonprofit she worked with, around the time the San Francisco Chronicle broke a series of stories investigating where the nonprofit’s grant money had gone. Now state prosecutors are arguing that if either of the cases is going to be delayed, it should be the feds’. In their brief, Pujari and Smetana estimate Lee would get a higher sentence for their charges. And they contend the state’s interest is paramount. “It appears that a far more compelling argument can be made for the abatement of the federal prosecution.” Smetana likewise bristles at Gruel’s suggestion that state prosecutors usually step aside once federal charges are brought. “I’m not aware of that custom,” Smetana said in an interview. “I might point out that the money stolen was the state’s money. Why would we go away?” EXPECT THE UNEXPECTED With Lee’s request to bar the state’s prosecution, the defense is asking Judge Meeks to find that the factual scenario merits a double jeopardy finding now — a request that Gruel concedes a defendant doesn’t usually make until there’s a conviction or acquittal on the books. “But just about everything about this case is uncommon,” Gruel said. “We’re breaking new ground here.” In their pitch to move ahead in federal court first, Gruel and Philipsborn argue that the superior court judge has discretion to control the proceedings before him, and should use it to give Lee a chance to defend herself in one forum at a time. One of the state’s biggest arguments against the defense motion is that it’s too early to talk about double jeopardy. “California’s statutes address the situation where a defendant has been convicted or acquitted in another jurisdiction,” Pujari and Smetana wrote in their brief. “That is not the case here.” On top of state double jeopardy statutes, the defense team is also pointing the court to the U.S. Department of Justice’s “Petite policy,” which is supposed to guide federal prosecutors when they decide whether to bring charges that echo a prior state case. To do so, it says the case should involve a substantial federal interest and be approved by the D.C. office. In their motion, Gruel and Philipsborn say the feds “appear to have violated” the Petite policy, an accusation the Eastern District vehemently denies. Brown points out Petite only applies when there’s a prior case with a conviction, acquittal, plea bargain, or dismissal on the merits. Gruel concedes the Petite policy doesn’t give a defendant enforceable rights, but argues that it demonstrates the federal government’s own “overriding sense of what is fair.” He added, “We’re trying to make sure this sense of fairness is what all parties are adhering to.” DOUBLE TROUBLE When a judge compares cases to see whether there’s a double jeopardy issue, the test turns on whether the charges in both prosecutions are based on the same conduct, said Dennis Riordan, an appellate specialist with Riordan & Horgan. And that can be a tricky business, noted Hastings College of the Law professor Rory Little. “Double jeopardy is probably the most confusing area of criminal procedure [and] constitutional law that there is,” Little said. “Is it the same transaction? Is it the same crime or a different crime? And that gets very confusing.” Gruel says he’s arguing for a broader interpretation of the test. He and Philipsborn contend that one of the state’s counts clearly overlaps with the federal case. Five others, they add, “are rooted in the same central facts” that provide the context for the federal mail fraud charges. Smetana and Pujari concede in their written arguments that the federal indictment covers much of the same conduct found in their complaint. But they maintain that there are “distinct differences.” For instance, the state includes charges that accuse Lee of swindling two real estate customers by telling them they’d have to write checks to Shelley’s campaign in order to purchase their properties. “All the crimes took place in the city, and city residents were defrauded,” Pujari said in a recent interview. Gruel sees a bit of irony in the tag-team approach to Lee’s case. In the 16 years he spent as a federal prosecutor in the Northern District, even mob kingpins weren’t targeted by so many prosecutors’ offices at once, he asserts. “The claim is that Julie Lee misused state funds that were from the taxpayers’ pockets,” Gruel said. “Yet we have three [prosecutors] all at taxpayer expense going after her at the same time, for the same conduct. To me, not only is it unfair to Julie Lee, but it is extremely ironic.”

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