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Once, former Assistant U.S. Attorney Richard Convertino was hailed for mounting the first successful post-9/11 terrorism prosecutions. But those 2003 convictions collapsed under allegations of prosecutorial misconduct. Now the wreckage of Convertino’s career and the Detroit “sleeper cell” trial is scattered among two federal courts. Indicted in March 2006 for allegedly withholding evidence during the trial, Convertino maintains, as he has for the past four years, that he is a scapegoat, persecuted for talking with a lawmaker whom Justice Department officials deemed an enemy. Convertino faces charges of conspiring to obstruct justice, making false declarations before the court, and obstructing justice. If convicted on all counts, Convertino could face a maximum sentence of 30 years in prison and a $1 million fine. In his motion to dismiss the indictment (filed in June but unsealed last week), the former prosecutor argues that the government’s charges are baseless because he never knew of the evidence — photographs of a military hospital in Jordan — that he is accused of concealing. Convertino has said repeatedly that the Justice Department is burning him for his September 2003 subpoenaed testimony before the Senate Finance Committee, which was chaired at the time by Sen. Charles Grassley (R-Iowa). “This is consistent with the actions of the Department of Justice in handling people who are doing their jobs and who they don’t like,” says William Sullivan Jr., Convertino’s defense attorney and a partner in the D.C. office of Winston & Strawn. “They didn’t like the Gang of Eight, and they don’t like Rick.” The Justice Department declined to comment on its motivation for pursuing criminal charges against Convertino nearly three years after the terrorism case unraveled, but in court papers filed last week in the U.S. District Court for the Eastern District of Michigan, prosecutors scorched Convertino for “consistently and repeatedly [misrepresenting] the government’s case, the government’s burden, the evidence and the law in their motions and, with regard to Defendant Convertino and his associates, in the press and on the Internet repeatedly.” FROM HERO TO ZERO Six days after the Sept. 11, 2001, terrorist attacks, Karim Koubriti and Abdel Ilah Elmardoudi were arrested in a Detroit apartment, along with another man, who would turn informant for the prosecution. Koubriti and Elmardoudi were charged with conspiring to provide material support to terrorists. Convertino, a decorated 14-year veteran of the U.S. Attorney’s Office for the Eastern District of Michigan, was lead prosecutor in the case. After a nine-week trial in 2003, a federal jury in Michigan convicted the two men on terrorism and fraud charges. The case’s first sign of trouble came in July 2003, about a month after trial. Publicly, the Justice Department was touting the case as a major victory in the war on terrorism. Privately, Convertino was reprimanded for his coldness toward his supervisors in Washington. Convertino was removed from the case in September 2003, just days prior to his testimony before Grassley’s committee. Then-Attorney General John Ashcroft assigned Craig Morford, then a federal prosecutor in Cleveland, to lead a court-ordered review of the case in December 2003, after U.S. District Judge Gerald Rosen called an emergency hearing to discuss allegations that Convertino’s trial team withheld an FBI interview with a convicted drug dealer who undercut the testimony of a key government witness. (Earlier this month, Morford was tapped as Justice’s new deputy attorney general.) Then, in January 2004, the Detroit Free Press published a story alleging that Convertino had dealings with Grassley’s committee during the trial, citing anonymous Justice officials and an internal investigation. Convertino responded by filing a whistle-blower case in the U.S. District Court for the District of Columbia the next month. That case has since been put on hold while the criminal case against Convertino plays out. Morford’s review, which was released publicly in August 2004, described the prosecution’s case as rickety. He also blamed Convertino for denying the defense evidence that might have suggested the men’s innocence. Of particular importance were photos of a military hospital in Jordan. Among the materials seized when the FBI raided the defendants’ apartment on Sept. 17, 2001, were sketches of what Convertino and FBI agents believed were possible targets in Jordan and Turkey. In February 2002, Convertino, along with a State Department employee stationed in Aman, toured several sites in Jordan they thought might be targeted, including the Queen Alia Military Hospital. According to the indictment, aerial photos of the facility were taken and forwarded to Convertino but were never supplied to the defense. In his review, Morford said the photographs would have contradicted government testimony about similarities between the hospital and the seized sketch. In September 2004, the government requested that the charges against Koubriti and Elmardoudi be dismissed. The omission of the photographic evidence then became the government’s basis for the criminal case against Convertino. PROSECUTING PROSECUTORS In his motion to dismiss the indictment, Convertino says he wasn’t aware of the photos at the time, but even if he were, they would have been useless to the defense because their scale and perspective vary wildly from the sketch. But defense lawyers who are not involved in the case say that because there was no other photographic evidence put forth to corroborate the appearance of the hospital, the photos should have been disclosed. “There’s no question — it’s not even a close call — that the defense counsel would have wanted to see photographs of the location,” says Michele Roberts, a defense lawyer at Akin Gump Strauss Hauer & Feld. And although Convertino’s conduct could be shown to meet the level of a criminal offense, she says such instances are “definitely rare.” “It’s not something that I’ve ever seen done before,” she adds. The odds of convicting a federal prosecutor on criminal charges of violating discovery laws are long, a fact Sullivan says bolsters his client’s assertion that the Justice Department is attacking him for the whistle-blower suit. A 1999 investigation by the Chicago Tribune found that in 11,000 cases of prosecutorial misconduct over nearly 40 years, not one had resulted in a criminal conviction or the loss of a law license. The report, along with several others, is appended to Convertino’s motion to dismiss. Sullivan’s own database search, also included with the motion, retrieved just two cases in which a prosecutor was convicted for misconduct. And those cases involved attorneys fabricating evidence, suborning perjury, or suppressing favorable or exculpatory evidence, he says. In their brief, prosecutors bristled at the implication that Convertino’s alleged misconduct was slight compared with those cases. In a footnote, they ticked off a list of “similar violations” by Convertino that were not charged criminally, among them allegations that he suppressed the opinion of FBI agents in Las Vegas who believed a suspected surveillance tape found in the raid was actually innocuous vacation footage. THE CASE OF THE JAPANESE AVIATOR? Convertino resigned from the department in May 2005 and has since worked as a criminal defense attorney in Plymouth, Mich. “After 16 years of experience with complex prosecutions, Richard Convertino is the defense attorney you need for criminal defense in state and federal courts,” his Web site says. His phone system pipes the “Rocky” anthem while callers are on hold. Convertino, through his attorneys, declined to comment. His attorney in the whistle-blower case, Stephen Kohn of Kohn, Kohn & Colapinto, says Convertino’s firm, Convertino & Associates, has picked up in the past year. On July 20, Convertino was in the news for successfully representing a former county sheriff in a domestic abuse case. In court, Convertino and his co-counsel displayed the sheriff’s wife’s MySpace page, which displayed handcuffs and the words “Make them tight, I’ve been bad.” According to the Livingston County, Mich., Daily Press & Argus, Convertino told the court, “If she’s a victim, I’m a Japanese aviator.”
Joe Palazzolo can be contacted at [email protected].

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