Attorneys for a convicted military contractor are locked in a battle with federal prosecutors over the release of information the government obtained during an eight-month probe into whether the defendant threatened the judge, prosecutors and a defense attorney.
Lawyers for David H. Brooks, sentenced to prison for his role in a $200 million fraud and obstruction of justice case, are seeking the information in a motion to compel that also requests U.S. District Judge Joanna Seybert of the Eastern District of New York to disclose what and when she was told about the alleged threats.
Brooks’ attorneys maintain the information is necessary as they consider whether to request Seybert’s recusal from further proceedings, including a restitution hearing.
“Without [Brooks'] knowledge, his judge was led by the government to believe that he had made a threat against her, but, in fact, the defendant had done no such thing. A false accusation—one involving the court’s own safety­—was conveyed to the court by the government without the defendant or his lawyers knowing anything about it. Depending upon the actual facts, this could give rise to actual bias by the judge against him or create the appearance of bias,” Victoria Eiger of Dershowitz, Eiger & Adelson wrote in United States v. Brooks, 06-cr-550.
But prosecutors from the Eastern District U.S. Attorney’s Office call the matter a “needless controversy” and argue Brooks is not entitled to the information.
Seybert has been “objectively impartial,” the prosecution noted. “When it came to sentencing, the defendant was facing a life sentence and the court declined to impose such a sentence, significantly departing downward from the guidelines’ and the government’s recommendations,” it said.
Brooks was on trial for bilking the body armor manufacturer he founded, DHB Industries Inc. A jury convicted him in September 2010 on conspiracy, mail and wire fraud, securities fraud, and obstruction of justice (NYLJ, Sept. 15, 2010).
In July, prosecutors disclosed to the defense in court papers that from November 2012 to July 2013, the U.S. Marshals Service, the FBI and the Eastern District U.S. attorney investigated allegations that Brooks “discussed physically harming” Seybert, as well as current and former prosecutors on the case and members of the defense.
One of the defense attorneys allegedly targeted was Gerald Shargel of Winston & Strawn. Shargel declined to comment.
In a July 18 letter, prosecutors said Seybert “was made aware of the alleged threat against her as part of the Marshals’ standard protocol. …The government does not intend to offer any evidence concerning the alleged threats in this matter.”
The defense complained that same day of the letter’s “ambiguous” wording and “inexplicabl[e]” filing on the public docket.
Prosecutors in a phone conference agreed to submit an additional filing to clarify “that to date we have not been able to corroborate or substantiate the allegations” but defended the public filing, saying there was no basis to submit it under seal.
Before the call ended, Seybert asked if she could expect a recusal motion from Brooks.
One of his attorneys, Richard Greenberg of Newman & Greenberg, replied, “I certainly don’t believe so, your Honor, now [that] the government has clarified it. I don’t see why the court should be affected by a baseless allegation.”
“And the court has not been affected by the allegations that were made,” Seybert replied.
About a month later, Seybert sentenced Brooks to 17 years and five years of supervised release, though prosecutors asked for a 30-year term.
Brooks is appealing his conviction and sentence.
In November, Alan Dershowitz, Brooks’ lead appellate lawyer, asked the government to reveal when Seybert was told of the threat, by whom and what she was told.
He also asked why the judge and prosecution were advised of the threat “many months” before Shargel was informed.
Assistant U.S. attorney Patrick Sinclair said the marshals and FBI were “duty-bound” to investigate the allegation and apprise Seybert of the probe.
Sinclair said the prosecution and FBI did not have information on what the judge was told about the course of the investigation.
Brooks’ attorneys responded on Nov. 27 with a motion to compel.
Sinclair’s letter, said the defense motion, was “silent” on the U.S. attorney’s office’s own investigation and possible ex parte communications to the judge. Moreover, the letter did not address what information other government agencies possibly sent to Seybert, the defense said.
The motion cited the U.S. Court of Appeals for the Second Circuit’s 2008 affirmance of the refusal of U.S. District Judge Nicholas Garaufis of the Eastern District of New York to recuse himself from a capital punishment case against accused Bonanno crime family member Vincent “Vinny Gorgeous” Basciano because of a death threat, United States v. Basciano, 542 F.3d 950 (NYLJ, Sept. 18, 2008).
The Basciano court said that “depending on the facts, it might reasonably be argued that a judge who becomes aware of a defendant’s credible plot or threat to kill him is likely to be adversely influenced in further rulings in that defendant’s case.”
But here, the compel motion said, “The present record does not permit a reasoned evaluation of whether that is so.”
The defense motion noted that between November 2012 and July 2013, Seybert denied “several substantial motions”—but the prosecution said she granted some motions too.
In its opposition to the motion filed last week, the prosecution said it was not aware of communication it or the FBI had relayed to Seybert.
“To the extent any of the information the defendant now seeks exists,” it would be possessed by Seybert or the marshals, the government said. Yet “no provision of law” permitted Brooks to seek information from the judge or the marshals, Sinclair said.
He also maintained that Brooks missed his opportunity to make a timely recusal motion when his attorneys said they would not seek recusal in July.
“Now, the defendant seeks to revisit his decision. …The Second Circuit specifically limits a defendant’s ability to play the system like this,” Sinclair wrote.
In an interview, Dershowitz emphasized that the defense should have been informed sooner. He said the compel motion was “trying to solve a mystery. If the government believed there was a serious threat against the judge and one of the defense attorneys, why did they notify the judge and not the defense attorney?”
He said there were “two possible reasons” the defense did not know sooner, one being that the government did not take the allegation seriously and told the judge in an attempt to prejudice her.
“Or the other is they believed it and didn’t care about the defense attorney, which is bizarre,” Dershowitz said. “There are lots of questions that have to get answered.”
A spokesman for the Eastern District Attorney’s Office declined to comment.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.