In the first public speaking appearance of his 60-plus-day tenure, San Francisco U.S. Attorney David Anderson sparred with leaders of the local defense bar Tuesday night over his plans to use tactics more traditionally associated with fighting organized crime in white-collar cases and his goals of upping the pace of criminal prosecutions in the Northern District of California.
In a panel discussion sponsored by the Association of Business Trial Lawyers, dubbed “White Collar Crime in a High Tech World,” Anderson got some pushback from criminal defense icon Cris Arguedas of Arguedas, Cassman, Headley & Goldman and Patrick Robbins of Shearman & Sterling about plans he’s outlined since appointing his new leadership team within the office last week.
“It sounds like the laid-back days of the Northern California criminal practice are over,” said Arguedas. It was the first of a number of good-natured barbs Arguedas aimed at Anderson, who most recently practiced as a white-collar defense partner with Sidley Austin in San Francisco before taking office. “I think the terms of engagement have just changed,” Arguedas said.
Tuesday’s panel was moderated by U.S. District Judge Haywood Gilliam Jr. before a crowd of more than 260 people gathered at the Hyatt Regency Embarcadero Hotel. It came in the wake of Anderson’s announcement of the creation of a corporate fraud strike force within the office, helmed by the former chief of a similar unit aimed at tackling organized crime. Where the office traditionally has emphasized document requests, subpoenas and proffers to pursue corporate fraud cases, Anderson has said going forward he wants to “bring the whole array of tools” Congress has given the office, including wiretaps, search warrants and criminal complaints, where appropriate.
“The thing that is most on my mind as I start into office is what I would characterize is the operational efficiency of the office across all case categories,” said Anderson in his opening remarks Tuesday night. Where the office charged about 1,000 criminal defendants in 2009 when Anderson served as first assistant U.S. attorney under Joseph Russoniello, last year the office brought about half as many cases. Over the same period, disposition times for criminal cases have more than doubled. Anderson said his central question coming into office is “how can I use the time of my assistant U.S. attorneys more efficiently to move the cases more quickly to disposition?”
But Arguedas said that she sees problems in the chief method that Anderson has articulated for speeding criminal cases along — getting plea offers to defense counsel early in cases, setting firm deadlines for defendants to accept those offers, and preparing for trial if they don’t.
“It puts too much power in the hands of the assistant U.S. attorney,” Arguedas said. “I don’t know if it’s the best offer until I’ve had a long time to sit with all the evidence. I don’t know if it’s the best offer until I’ve had a chance to investigate the case which they haven’t done. They think they have done [it], but they haven’t because they haven’t looked at it from our side.”
Arguedas pointed to her own defense of FedEx Corp., where federal prosecutors abruptly dropped a prosecution accusing the company of conspiring with illegal online pharmacies to ship addictive prescription painkillers without face-to-face doctor visits. Arguedas had highlighted in her opening that FedEx officials had told the DEA that they’d be willing to cease shipping for any online pharmacy identified by the agency, but had never been provided such a list.
“It does happen that assistant U.S. attorneys become myopic in their point of view. They see things a certain way. They see the same facts I see but they don’t put the same import on them,” Arguedas said. Arguedas said that if she doesn’t have the time to do her own investigation before fully considering a plea deal, her client might miss out on that “first best offer and the process won’t have worked correctly.”
“That’s kind of a big complaint to your main premise,” she said.
Robbins added that large corporate cases are slow by their very nature since they result in millions of documents being handed over to the government.
“The defense lawyers in criminal trials feel like they need to understand that and analyze that,” Robbins said. “Technology and big data can help but it’s very time-consuming. It makes it tough to treat a case like that like a reactive case or a drug case that can be set for trial even in six months.”
Anderson acknowledged that same approach won’t work in all cases, particularly in large multidefendant cases. But he said setting and sticking to plea deal deadlines will be important to increasing the “drumbeat” of cases in courthouses across the district.
“I think that the problem is that if you don’t invest maximum credibility into that deadline then over the entire inventory of cases those deadlines stop meaning what they need to mean in order for this to work,” Anderson said. “So is it possible that I’ll misjudge a case so the plea offer doesn’t end up where it should be? Yeah, that will happen. So, let’s go to trial.”
To that, Robbins, a former federal prosecutor himself, responded that an approaching trial date can often erode the government’s confidence in a case. “It’s when they start meeting with witnesses and they see things they didn’t see before,” Robbins said.
Robbins said that the initial plea deadline is “a deadline that’s an important one, but it’s not the only one.”