With a trial on felony charges just weeks away, federal prosecutors and lawyers for former law firm partner Evan Greebel are ratcheting up their rhetoric over some unusual issues, including the defense lawyers’ own résumés.
In one of the latest disputes, prosecutors are asking the judge to bar Greebel’s attorneys at Gibson, Dunn & Crutcher from referring to themselves before a jury as former prosecutors.
“That would be an unprecedented ruling,” shot back Gibson Dunn, which is also arguing that prosecutors did not follow the U.S. Attorney’s Office manual in charging Greebel.
Prosecutors and defense attorneys in recent weeks have traded sharp barbs in motions in limine papers ahead of the Brooklyn federal trial, scheduled to start the week of Oct. 16.
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 alleged fraud. 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.
Their cases were severed earlier this year, with Greebel’s trial following Shkreli’s.
While Shkreli was convicted Aug. 4 of three counts, a jury acquitted him of five counts, including the wire fraud conspiracy charge also facing Greebel.
A suite of heavyweight former prosecutors at Gibson Dunn, including partners Reed Brodsky, Randy Mastro and Winston Chan, have appeared for Greebel.
Sensing potential jury arguments, the U.S. Attorney’s Office said in court papers that references by a defense lawyer to being a “former federal prosecutor” could improperly suggest to the jury that the government’s conduct in the investigation or prosecution was improper.
“Any attempt by defense counsel to cast doubt on the government’s investigation and prosecution of the defendant by implying that defense counsel, a former federal prosecutor, would not have made the same investigative or charging decisions when they themselves were prosecutors is entirely inappropriate,” said Eastern District assistant U.S. attorneys, including Alixandra Smith, David Pitluck and David Kessler.
In response, Gibson Dunn said the prosecution’s request amounts to handcuffing their right to argue before the jury.
“The government wants to muzzle us from speaking about personal experiences to communicate with the jury,” they said, adding that defense counsel often tell anecdotes and stories to crystallize issues, connect and argue significant points.
Gibson Dunn said it’s aware of no case where the government has ever moved to preclude former federal prosecutors from mentioning their background to a jury, and no case where the court ordered the defense counsel not to disclose past experience as a prosecutor.
“The government’s request is wrong, dangerous and offensive,” Gibson Dunn said.
Last month, Gibson Dunn, in seeking to dismiss a count against Greebel, criticized the U.S. Attorney’s Office for the Eastern District of New York for how it handled the lead-up to the case.
Defense lawyers noted that the U.S. attorney’s manual mandates that a federal prosecutor’s office must obtain prior approval before the U.S. Department of Justice in Washington, D.C., before even serving a subpoena for documents or testimony on an attorney.
But prosecutors said that suggestion is only based on a selective quotation from the manual, and defense lawyers have used motion papers “as a vehicle for taking unwarranted rhetorical shots at the government.”
“Despite the inflammatory rhetoric peppered” from the defense, including the accusation that the government’s actions ‘shock the conscience,’ Greebel’s attorneys have not moved to dismiss based on prosecutorial misconduct, prosecutors note.
In more routine arguments, the parties dispute whether Greebel’s compensation at Katten should be disclosed to the jury. Federal prosecutors said there is no question that Greebel’s compensation was tied at least in part to the amount of hours he billed, as well as to the hours those working on his matters billed.
The overall revenue that Katten received, or sought to receive, from Shkreli-related work is relevant because it relates to Greebel’s “motive in working with Shkreli and his incentive to aid or turn a blind eye to the goals of the conspiracies,” prosecutors said.
“The evidence actually shows that, each year, the defendant submitted a memorandum to Katten’s Compensation Committee to document his achievements and to ask for greater compensation,” prosecutors said.