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A recent scandal in California involving a renowned private investigator submitting forged juror declarations in a death penalty case has raised eyebrows. How can it be that those who are supposed to be working to unveil the truth in criminal cases end up polluting the process? Unfortunately, perjury, forgery and the filing of false documents is not uncommon. Judges must continually watch for false declarations submitted by parties, investigators and even lawyers themselves. The recent scandal involves the submission of falsified juror declarations in support of a habeas corpus petition in a capital case. Investigator Kathleen Culhane has been charged in a 45-count felony complaint with fabricating nearly two dozen such declarations for four different death-row clients. In some of the falsified declarations, jurors alleged that they were biased during deliberations. In others, defense investigators claimed not to do their work in a capital case because they felt their client was “guilty as sin.” Together, these alleged false declarations create a disturbing pattern of an investigator allegedly doing whatever she can to create misconduct claims in habeas corpus proceedings. Prosecutors are cracking down on false information This pattern of submitting false information to the court occurs in both criminal and civil cases. Prosecutors across the country are becoming more aggressive in charging investigators and lawyers with the submission of false information to the court. For example, in U.S. v. Holmes, 406 F.3d 337 (5th Cir. 2005), an attorney practicing in Texas was convicted of mail fraud and conspiracy to commit mail fraud for scheming with the district clerk of his county court to back-date malpractice petitions in order to avoid a statute of limitations bar. The scheme was discovered when the petition that Holmes claimed to file in 1996 was analyzed and found to be printed on bond paper with a watermark and date code for 1997. Given that the paper was not manufactured until 1997, it was impossible for Holmes to have filed the petition in a timely fashion in 1996. Some lawyers have even been bold enough to forge court orders. In the recent case of U.S. v. Reich, 479 F.3d 179 (2d Cir. 2007), the defendant, attorney Perry Reich, commenced an arbitration proceeding against a brokerage firm he alleged had mishandled his account. The brokerage firm filed a lawsuit in federal court seeking to enjoin Reich and other former investors from arbitrating against it. The magistrate judge denied the motion for a preliminary injunction, staying arbitration. However, the magistrate judge did not resolve the motion for summary judgment so the plaintiff filed a petition for writ of mandamus to the appellate court. Before the appellate court could decide on the mandamus petition, the plaintiff received what purported to be an order by the magistrate judge vacating her prior ruling on the preliminary injunction motion. The forged order led the principal of the brokerage firm to withdraw his application for the mandamus writ. It turned out that the magistrate judge’s order was a fake. Although it bore the headings of the court, the judge’s signature had been forged. Using phone and fax records, an investigation by the Federal Bureau of Investigation traced the falsified order back to the defendant, Reich. When false information is submitted to the court, several different charges may be filed. Typically, these will include obstruction of justice (and conspiracy to obstruct justice), submission of false declarations and forgery. Each is considered a serious felony and can certainly spell the end of a lawyer’s or investigator’s career. Historically, courts had the power to punish such actions under their contempt powers. However, in order to ensure that conduct outside of the court’s presence could be a separate indictable offense, Section 1503 was enacted. To prove obstruction of justice under 18 U.S.C. 1503(a), prosecutors must show that the defendant “corruptly . . . endeavor[ed] to influence, obstruct, or impede, the due administration of justice.” Obstruction of justice can take place in a variety of ways. Lawyers can obstruct justice by inducing witnesses to alter their trial or grand jury testimony, coaching them to avoid summonses to appear before the grand jury, or even pressuring witnesses to destroy their notes or evidence. See, e.g., U.S. v. Kalevas, 622 F. Supp. 1523 (S.D.N.Y. 1985); U.S. v. Siegel, 152 F. Supp. 370 (D.C.N.Y. 1957). It can also occur when a lawyer tells a client that he can secure a lesser sentence for the client in exchange for a bribe that the lawyer would pass on to “powerful and dangerous people” who could assure that defendant received probation. See, e.g., U.S. v. Fields, 838 F.2d 1571 (11th Cir. 1988). And, of course, it can be charged when a lawyer actually arranges for kickbacks to judges in exchange for favorable rulings. See generally, U.S. v. Qaoud, 777 F.2d 1105 (6th Cir. 1985). A defendant need not be successful in her efforts to impede the administration of justice in order to be charged with obstruction. Siegel, 152 F. Supp. at 373. Also, unlike perjury and false statement charges, obstruction does not require that the obstructing efforts be directed toward a “material” matter. Id. Almost always, if the defendant is seeking to impede an investigation or trial, his efforts are going to be considered material ( Reich, 479 F.3d 179 at *6) because under the Supreme Court’s test in U.S. v. Aguilar, 515 U.S. 593, 599 (1995), there need only be a “nexus” between the defendant’s efforts and the investigation or proceedings he is seeking to corrupt. To satisfy the nexus requirement, the defendant’s conduct must “have a relationship in time, causation, or logic with the judicial proceedings,” meaning that “the endeavor must have the natural and probable effect of interfering with the due administration of justice.” Id. Therefore, even if the false submissions do not actually affect the outcome of the proceedings, they may still constitute obstruction of justice. Submitting false documents may also violate forgery laws. The circuits are split as to whether a charge of forgery pursuant to 18 U.S.C. 505 requires an intent to defraud. Long ago, the 6th U.S. Circuit Court of Appeals, 47 F.2d 470, 471 (6th Cir. 1931), found that the common-law element of intent to defraud was implied in the federal law. However, the 10th Circuit in U.S. v. Cowan, 116 F.3d 1360, 1361 (10th Cir. 1997), and the 2d Circuit in Reich, have reached the opposite conclusion. Based upon the language of Section 505, those courts have refused to find that the prosecution must prove that the defendant intended to defraud when he forged or counterfeited the court’s signature or seal. It is sufficient that the defendant was responsible for the forgery. Submitting false documents to the court may also constitute a scheme to defraud under the mail or wire fraud statutes, 18 U.S.C. 1341, 1343. In prosecuting under these statutes, the government must demonstrate that the misstatements were made with intent to defraud and were material. Thus, an investigator would not be in trouble if she submitted juror declarations that had innocent mistakes. However, if the prosecution could prove that the investigator prepared the false documents in order to convince the court to grant a hearing on a habeas corpus petition, then the defendant could be convicted of mail or wire fraud, depending on which transmission method was used for the filing. See, e.g., U.S. v. Holmes, 406 F.3d 337 (5th Cir. 2005). Perjury proves to be a challenging charge Perjury is one of the more challenging crimes for prosecutors to use in charging a defendant for submitting false declarations. Prosecutors must prove the statement made in the declaration was factually inaccurate and that the declarant knew the statement was false. See, e.g., People v. Watkins, 2006 WL 2734317 (Calif. 4th Ct. App. Sept. 26, 2006) (unpublished). Where statements made in a declaration may be factually accurate, but subject to misinterpretation, prosecutors may be reluctant to use the perjury statute to bring charges. In federal court, 18 U.S.C. 1623 expressly prohibits the making of a false statement under oath to any court or grand jury. The statement must be knowingly and materially false. See U.S. v. Anderson, 798 F.2d 919 (7th Cir. 1986) (defendant convicted of violation of � 1623 for false testimony before grand jury). Because these cases often depend on the defendant’s credibility, they are extremely difficult to defend unless the defendant testifies. Moreover, the dynamics of the case often make it difficult for the defendant to win a swearing contest. In those situations where the defendant is charged with lying in a way that affected the court, he may find himself seeking to rebut the testimony of a judge who ends up as a witness for the prosecution. Finally, where a defendant creates a false court document and presents it to others, prosecutors may consider charges under 18 U.S.C. 1001. Section 1001 prohibits not only false statements to government agents, but also the use of any writing or document that was created in a matter involving a federal agency. This was the case in U.S. v. London, 714 F.2d 1558 (11th Cir. 1983), where a lawyer was convicted of violating that law when he falsified an order against his client. He created the order to try to convince his client to pay him for a judgment that his client never received. One can hope that litigants and lawyers will act in an honest, upright manner when making representations to the court, but for those who do not, there are ample state and federal laws to punish such behavior. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles. This column was co-written by Jeffrey Jensen of Loyola Law School, class of 2008, and editor-in-chief of the Loyola Law Review.

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