Evan Greebel.
Evan Greebel. (Courtesy photo)

A Brooklyn federal judge held off from immediately dismissing a charge against former law firm partner Evan Greebel before his upcoming trial this month, despite his defense attorneys at Gibson, Dunn & Crutcher imploring the judge to trim the case out of “fairness and justice.”

Attorneys for indicted ex-law firm partner Evan Greebel and prosecutors squared off before U.S. District Judge Kiyo Matsumoto of the Eastern District of New York on Oct. 6 on last-minute requests to dismiss parts of the indictment and to preclude certain evidence at Greebel’s trial, scheduled to begin the week of Oct. 16. The hearing was still ongoing at press time Friday evening, after stretching beyond normal courthouse hours.

Greebel, initially a co-defendant to convicted and now-imprisoned former pharmaceutical executive Martin Shkreli, is accused of conspiring with Shkreli to defraud biopharmaceutical company Retrophin Inc., where Shkreli was CEO until 2014.

Greebel was Retrophin’s outside counsel and a partner at Katten Muchin Rosenman at the time of the conduct at issue. He joined Kaye Scholer in the summer of 2015 but resigned in early 2016, after the indictment was filed.

Greebel and Shkreli were charged together in two counts: conspiracy to commit wire fraud related to Retrophin, and conspiracy to commit securities fraud related to Retrophin stock.

While Shkreli was convicted Aug. 4 of three counts, a jury acquitted him of five counts, including the wire fraud conspiracy charge–Count 7–also facing Greebel.

Gibson Dunn moved to dismiss the count against Greebel, citing the jury’s decision on Shkreli.

At oral argument Oct. 6, where a team of six lawyers from Gibson Dunn appeared for Greebel, the judge noted that the indictment says Shkreli and Greebel, together with others, were in the conspiracy.

“What you are doing,” the judge told the Gibson Dunn attorneys, is asking her to preclude the government from making its case. She noted that the government has said there are other co-conspirators besides Greebel and Shkreli.

One of Greebel’s defense attorneys, Gibson Dunn partner Randy Mastro, said the government has already argued that Shkreli was the dominant person in the conspiracy, yet the jury rejected the charge against Shkreli.

Mastro said the evidence presented by the prosecution at Shkreli’s trial was that it was a conspiracy of two. “The government doesn’t get a do over,” he said, arguing it’s an issue of “fairness and justice, your honor.”

“We implore your honor to intervene,” Mastro said. “Evan Greebel was not the dominant player. The dominant player has been acquitted.”

If the count is not dismissed, the prosecution shouldn’t be allowed to tell the jury that Shkreli was a co-conspirator, Mastro said.

But assistant U.S. attorney David Kessler said “this is a different trial,” with different evidence.

Kessler argued that Shkreli is a valid co-conspirator, and said he intends to proceed as such.

Matsumoto said she would have a decision soon on the issue, noting the complicated nature of the issue. There “isn’t clear guidance,” she said.

However, she said “my gut feeling” is that the government had said it has evidence that it didn’t present at Shkreli’s trial, and it didn’t seem appropriate to dismiss the count “at this stage.” She said she was open to hearing arguments of dismissal after the government has presented its evidence at trial.

In all, a volley of more than a dozen motions were filed before the conference, prompting the judge on Oct. 6 to say she was “somewhat dismayed the parties have decided to pummel the court” with motions.

In one motion in limine, prosecutors asked the judge to bar Greebel’s attorneys at Gibson Dunn from referring to themselves before a jury as former prosecutors. Besides Mastro, Gibson Dunn partners and former federal prosecutors Reed Brodsky and Winston Chan are defending Greebel. The firm has argued that such a request would “handcuff” Greebel’s defense, and they are aware of no case where the government has moved to preclude former federal prosecutors from mentioning their background to a jury.

But Matsumoto on Oct. 6 said she didn’t think it was appropriate for the defense attorneys to refer to themselves as prosecutors. She said the defense attorney’s backgrounds are “not relevant” to the jury, which must decide the case on the evidence.