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Finding that a federal prosecutor “got carried away” during his closing argument, a federal judge has ordered a new trial for two men and a corporation on charges of violating the Trading With the Enemy Act and the Cuban Assets Control regulations. In her 33-page opinion in United States v. Brodie, U.S. District Judge Mary A. McLaughlin of the Eastern District of Pennsylvania found that Assistant U.S. Attorney Joseph Poluka’s closing argument included accounts of “deception, concealment and obstruction” by the defendants on trial, but that Poluka’s account “was not supported by the evidence.” Specifically, McLaughlin found that Poluka improperly argued that one witness had testified about documents that were destroyed, and that two others had lied to government agents. McLaughlin said she was also “very concerned about the impact on the jury” of Poluka’s “repeated use of various forms of the word lie.” In his closing speech, McLaughlin noted, Poluka repeatedly used the terms “lies,” “double lie,” and “pack of lies.” “This language is inflammatory and has no place in the argument of an Assistant United States Attorney. These are words that stir up the jury to decide the case not on a fair and objective review of the testimony of the witnesses and the documents but on emotion,” McLaughlin wrote. McLaughlin also found that Poluka’s improper arguments were made worse when Assistant U.S. Attorney Michael Levy “vouched” for Poluka’s character in the government’s rebuttal argument. In his rebuttal speech, Levy told the jury: “What you have seen from Mr. Poluka is something I’ve known for a long time, a man who is passionate and committed about his work, but I think you’ve also seen a man who is extremely fair and tries his best to do what is right.” McLaughlin found that Levy’s remarks made Poluka’s improper arguments even worse. “When an extremely personable and able prosecutor tells a jury that the defendants have been shredding documents and lying to government agents and calls the defendants liars, and when a second prosecutor then tells the jury that the first prosecutor is passionate, committed, extremely fair, and tries to do what is right, it would have to be a very special jury that is not influenced by such argument,” McLaughlin wrote. “I cannot conclude that we had such a jury here,” McLaughlin wrote. In her closing paragraph, McLaughlin criticized Poluka, but also made clear that she “reluctantly” granted to the defense motion for a new trial because she considered the prosecutor’s mistake to be a “last minute” lapse in judgment that caused serious prejudice to the defendants’ right to a fair trial. “It is easier for a prosecutor, when giving a closing argument, to call the defendants names and misstate the evidence than to come to grips with the real evidence and carefully rebut the defenses that have been presented. But the latter is the job of an Assistant United States Attorney,” McLaughlin wrote. “The prosecutor in this case conducted himself throughout the complex pretrial proceedings and the trial as a skilled advocate and a person of integrity. Somehow, at the last minute, perhaps in the heat of a long and complicated trial, he got carried away,” McLaughlin wrote. McLaughlin said that while she could “certainly understand” Poluka’s actions “from a human point of view,” she also “cannot ignore conduct that may have prejudiced criminal defendants.” As a result, she said, “it is with great reluctance that the court grants the motion for a new trial.” In the indictment, the government charged that Donald and Stefan Brodie, two executives of Bro-Tech Corp., a Bala Cynwyd, Pa.-based company, and one of its salesmen, James Sabzali, violated the Trading With the Enemy Act and the Cuban Assets Control regulations by selling water purification resins to Cuba. As McLaughlin described it, there was no dispute at trial about whether the sales to Cuba took place. Instead, the judge said, the only issue at trial was “whether the defendants knowingly and willfully violated the TWEA and the CACRs.” The primary defense was that Stefan Brodie, the CEO of Bro-Tech, consulted with attorneys at various times during the alleged conspiracy and informed Bro-Tech’s sales force that any sales to Cuba had to be shipped from the United Kingdom. In its verdict, the jury convicted all three men and the corporation of a conspiracy charge, but acquitted two of the men on a significant number of underlying counts. McLaughlin later overturned the verdict against Stefan Brodie, entering a judgment of acquittal for him on the conspiracy charge — the only count he was convicted of. Now McLaughlin has ruled that the evidence was strong enough to support convictions of Donald Brodie, the corporation and Sabzali, but that all three deserve a new trial due to Poluka’s and Levy’s closing arguments. In her opinion, McLaughlin focused on three incidents in which prosecutor Poluka made arguments in his closing speech that defense lawyers said were improper and not backed up by evidence that came out during the trial. In the first, defense lawyers said, Poluka argued that one witness had testified about the destruction of documents. McLaughlin agreed that Poluka’s argument was not backed up by evidence and found that it was especially prejudicial to the defense. “In evaluating the effect on the jury of this improper argument, the court observes that any charge of document destruction is highly inflammatory. Recent events relating to the collapse of Enron and the criminal prosecution of its independent auditor, Arthur Andersen, for document destruction were the subject of intense coverage by the national news media before and during the trial of this case,” McLaughlin wrote. “In a case such as this, where the issue for the jury was the defendants’ intent, any evidence of document destruction would have been very relevant and powerful evidence,” McLaughlin wrote. McLaughlin also found that Poluka improperly accused Stefan Brodie of lying. “The court is concerned about a prosecutor arguing that a defendant, who took the stand, lied or uttered a ‘pack of lies.’ The government appears to concede that it would be improper to characterize a defendant’s trial testimony in this fashion; but, argues that it is proper to characterize a defendant’s pretrial conduct in this fashion,” McLaughlin wrote. “It is the court’s view that it is never proper to throw around such inflammatory language in a criminal trial, especially when it is used to describe a defendant. But even if it were proper to use that language about pretrial conduct when a defendant does not take the stand, there is no way to separate pretrial conduct from trial testimony in this case,” McLaughlin wrote. Richard Manieri, a spokesman for the U.S. Attorney’s Office, said the Office is studying McLaughlin’s opinion but did not have any immediate comment on it. Sabzali was represented by attorneys Robert Welsh and Catherine Recker of Welsh & Recker in Philadelphia. Donald Brodie was represented by attorney Steven Kimmelman of New York. Bro-Tech Corp. was represented by attorney Kevin Downey of Williams & Connolly in Washington, D.C. Attorney Greg Craig, also of Williams & Connolly, represented Stefan Brodie. Craig’s is a familiar name to some lawyers because he represented Juan Gonzales, the father of Elian Gonzales, the Cuban boy whose custody became embroiled in an international debate when he arrived in Florida after a treacherous journey in which his mother had died.

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