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ATTORNEY: Abbe David Lowell FIRM: Manatt, Phelps & Phillips, Washington, D.C. CASE: U.S. v. Black, No. 00-CR-63200-00 (S.D.N.Y.) Defense attorneys in any white-collar crime prosecution face several daunting obstacles, contends Abbe David Lowell. “You have to overcome the presumption of guilt,” he says. While the law puts the burden of proof on the prosecution, in reality “many people believe if the defendant didn’t do something he wouldn’t be charged.” In addition, he says, “prosecutors have this technique of filing multiple charges that encourages jury compromise.” Instead of getting a hung jury, the jurors agree to convict on something, just to get the trial over with. In white-collar cases, he adds, the defendants may be heard on tape or seen on video seemingly entering into the conspiracy that the government alleges. To counter this, Lowell says, a defense attorney has to attack the government’s case at its softest spot — the defendant’s intent or motive. “In white-collar cases, the areas are fundamentally gray. You have to show juries and judges that the defendant’s intent and motive are more complex than the prosecution charges them to be.” In a trial earlier this year where his client was charged with racketeering and fraud, Lowell focused on proving that his client Gene Phillips had no motive or intent to engage in criminal acts. “You put the bad evidence in context,” Lowell says. “Phillips never agreed as the government alleged to commit any wrongdoing with” the cooperating witness, Jeffrey Pokross. “If he was engaged in conversations with Pokross at all, it was by government inducement.” At the end of trial, Lowell won an acquittal for Phillips on all charges. The verdict was the most recent in a string of acquittals won by Lowell in high-profile criminal prosecutions. Lowell commonly represents prominent individuals under investigation, often before any indictment or charges have been made. Lowell has only lost one case at trial since moving into private practice in 1983 after a six-year stint in the Department of Justice; as an Assistant U.S. Attorney he lost only one trial. Lowell represented the Democratic members of the U.S. House of Representatives Judiciary Committee in the impeachment of President Clinton and was attorney to Rep. Gary Condit, D-Calif., in the recent investigation of the disappearance of intern Chandra Levy. The indictment of Phillips was part of a major racketeering and fraud investigation by the office of the U.S. Attorney for the Southern District of New York; initially more than 100 people had been charged. Phillips, a wealthy Texas developer, was one of the more prominent. Four others were tried with him. The accusation was that Phillips had agreed with the government’s cooperating witness, Pokross, to enter into a scheme in which Phillips and his companies would pay kickbacks and bribes to the people making decisions on investing for union pension funds, so that the pension funds would invest in Phillips’ companies, Basic Capital Management and American Realty Trust. Phillips was charged with, among other things, racketeering, securities fraud and pension fraud. The defense position was that Phillips had never agreed with Pokross to engage in any criminal activity. The tapes of conversations between Pokross and Phillips were worrisome, he says: “The government could argue that the defendant agreed with Pokross to give bribes.” But, he says, “If you listen to the tapes carefully, Phillips didn’t give his consent.” In any defense, Lowell says, “My philosophy is that the defendant has to do three things. First, you have to level the playing field against the assumption of guilt. Second, you have to present your overriding theme in the most succinct fashion possible. Third, you have to present one issue where the jury will find reasonable doubt.” In white-collar crime, he says, “the theme always revolves around the person’s intent and motive.” The defendant will not be relying on an alibi, and will not be claiming insanity. “The battle will be over intent. The question was why, what was going on his mind.” To show that the defendant had no intent or motive to commit a crime, the defense has to attack the weaknesses in the government’s case. Typically, Lowell says, there are several vulnerable issues. “I represent people that the government overcharges,” he says. “You can exploit the government’s overcharging.” In white-collar prosecutions, the defendants are very often legitimate business people, he adds. “You put the alleged wrongdoing in the context of their lives. ‘This is not a career criminal. The defendant has had a long track record of profitable and proper business transactions.’” The defendant’s previously stellar reputation may be in stark contrast to the government’s prime witness. In the prosecution against Phillips, Lowell says, “the government’s cooperating witness was two or three times as bad as the government would admit.” Pokross was a broker/dealer who had been arrested for a “pump and dump” scheme, then used by the government to establish a sting operation. “Pump and dump” is a method of stock fraud where brokers conspire to pump up the price of stock in which they have an interest, then sell it at a huge profit. Before trial, Lowell filed a series of motions, not just to get the case dismissed, but to learn what the prosecution had. “Pretrial motion practice is critical with white-collar defense, with all criminal defense,” Lowell says. “I keep filing motions almost up until the time of trial. The only thing the judge, the jury and the defendant know about the case is the indictment. Motions practice allows your story to be told.” At trial, he put on his case through the government’s witnesses. He considers this “critical. I’m in trouble if I have to put on a defense. “If a government agent takes the stand, I introduce the defense theme through the agent,” he notes. In this trial, the prosecution relied heavily on FBI agent Kevin Barrows, who supervised Pokross. The government used Barrows to introduce the tapes; Lowell used Barrows to introduce every one of the defense contentions. When cross-examining such witnesses, Lowell says, the answers they give are almost irrelevant. For example, when Lowell cross-examined Barrows about Pokross, Lowell’s questions were framed so Barrows could do little more than answer yes or no. As a result, in response, the witness agreed that Pokross had, among other things, misled and deceived his customers, financial institutions, creditors, securities regulators and the U.S. Customs Service. One of the defense points was that the government had overcharged on the indictment; one claim in the indictment said that Phillips “secretly controlled” Basic Capital Management. At trial, Lowell had Barrows read the Securities and Exchange Commission filings by Basic Capital. The document revealed that it was controlled by Phillips, thus blowing apart the government’s claim that Phillips “secretly” controlled the company. On Feb. 13, 2002, while three of his co-defendants were convicted, Gene Phillips was acquitted on all charges. TRIAL TIPS � Make your case through foe’s witnesses. � Intent and motive are key issues in defense. � Neutralize the assumption of guilt.

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