A defendant has a constitutional right to prepare a defense to criminal charges. In a white-collar case, contacting potential witnesses is as important as reviewing the document trail.
Why does the government feel threatened when we do our jobs?
I have had a prosecutor express surprise—in a tone suggesting that I had done something wrong—when I contacted a witness who had testified before the grand jury against my client. In a case in the Eastern District of New York, the judge issued an order preventing defense counsel from contacting potential witnesses or their counsel.
This is stunning.
Luckily for the defendant, his counsel fought back, and the judge reversed herself. I’m including this as Part IV of my previous series on “Fight the Power.”
This all started in a billion-dollar securities fraud case against former executives of Platinum Partners. The case is pending before Judge Irizarry. From the looks of the docket, it has been a rather heated case. The defendants were indicted in December 2016. Since then, there have already been 210 docket entries.
From my experience, the government doesn’t take kindly to defendants fighting back hard and making the case difficult for them. And I have a feeling that, based on what happened in this situation, there are some bad blood between defense counsel and the government. (Otherwise, the government’s response was even more out of proportion to what happened.)
One of the defendants in the case, Mark Nordlicht, is represented by Quinn Emanuel. Quinn Emanuel is a very good, very aggressive firm. They aren’t afraid of a fight.
There was a search warrant executed on Platinum Partners’ offices. An FBI special agent had submitted an affidavit in support of the search warrant application. The agent’s affidavit quoted “Cooperating Witness-1” or “CW-1” in support of the search warrant because CW-1 had made incriminating statements about Platinum Partner’s investment activity.
For a few months, Quinn Emanuel had been pressing the prosecutors to disclose additional Brady or Giglio information. In particular, they wanted the statements of CW-1 because they suspected that the FBI agent had exaggerated what CW-1 told him to justify to search the search. If it was exaggerated, then the evidence seized during the warrant’s execution could be suppressed.
Quinn Emanuel wrote the prosecutors three letters in June and July asking for this Brady information related to CW-1. The government wrote back:
In response to your letters, the government has determined that no additional disclosure is warranted at this time. The government is aware of and will continue to comply with its various disclosure obligations, including under Brady v. Maryland, 373U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).
Translation: Stuff it. We aren’t turning over anything else.
The Letter to Cooperating Witness-1’s Counsel
Because the government refused to turn over CW-1’s statements as part of its Brady disclosures, Quinn Emanuel decided to contact CW-1’s lawyer themselves. This is perfectly appropriate. It’s part of being an effective lawyer.
On August 8, Quinn Emanuel sent a letter to the lawyer for a former employee of Platinum Partners that they believed was CW-1. The letter asked to speak with the former employee.
It quoted the agent’s affidavit that CW-1 had said that “Platinum profited greatly from its fraudulent overvaluations.” It said that they “find it implausible that your client made these statements,” and noted that if the former employee had made those statements, “this would have amounted to a self-incriminating confession of his own involvement or complicity in the alleged fraud.” As a result, the former employee must have received an immunity agreement or something along those lines.
Quinn Emanuel went on to say that if this had happened, then the former employee’s current employer would have had to “disclose to its investors” that he had “admitted to fraud at his prior [redacted] position and we understand that no such disclosure has been made.”
The former employee’s counsel must have immediately told the government about the letter (suggesting strongly that this witness is, in fact, cooperating with the government. He sure isn’t in a joint defense agreement with Mr. Nordlicht.)
The Government Runs to the Court to Complain
The government was not happy about Quinn Emanuel’s somewhat heavy-handed approach to this witness. They wrote a letter to the judge on August 9 (he very next day) saying that “the government has serious concerns about the Nordlicht letter.”
The government said that the letter sought to conform confirm Mr. Nordlicht’s assumption that CW-1 from the agent’s affidavit was this “Previous Employee” and also the letter “makes a veiled threat to the Previous Employee relating to the Previous Employees post-Platinum employment.” The government said that this letter “is tantamount to witness intimidation.”
The government read the letter to mean that Quinn Emanuel was asking this witness to recant his prior statement to the government “or risk having someone contact the subsequent employer regarding the Previous Employee, potentially resulting in adverse action against the Previous Employee or public denigration.”
From the record, the government did not file a motion for sanctions or report Quinn Emanuel to the bar for an ethical violation or open a grand jury investigation into witness tampering. The government . . . wrote a letter.
Quinn Emanuel fired back a letter the next day, explaining that its letter was not witness tampering but rather a response to the government’s refusal to turn over the witness’ statements. Quinn Emanuel also made the point that contacting the witness’s lawyer
was entirely reasonable and proper. Mr. Nordlicht is well within his rights as a defendant in a criminal case to investigate possible defenses, including having defense counsel contact counsel for potential witnesses to determine whether they’re compliant their clients have information helpful to Mr. Nordlicht’s defense.
The Court’s Stunning Order
The judge held a hearing on the matter. At the end of the hearing, the judge issued the following text order:
Defense counsel and defendant are admonished for the communication(s) in question. Defense counsel and defendant are ordered to desist from making any efforts to communicate with any government witnesses or their attorneys upon pain of sanctions, finding of contempt, and remand of the defendant. The government shall notify the Court of any such behavior immediately.
At the August 18 hearing, the court said “there will be sanctions if I find that there is any other kind of conduct like this that even approaches any intimidation of witnesses or witness tampering in this case.”
The Government Backtracks and So Does the Court
Quinn Emanuel and Mr. Nordlicht did not take this sitting down. They filed a mandamus petition in the Court of Appeals for the Second Circuit seeking reversal of the court’s order.
In sum, it argued:
An individual charged with a crime has a fundamental right to prepare an effective defense, and that right includes the opportunity to seek information from potential witnesses. In this criminal case, the district court (Irizarry, C.J.) has ordered defense counsel—on pain of sanctions, contempt of court, or even revocation of Mr. Nordlicht’s bail—to refrain from speaking with any government witnesses or even their counsel. The order, which appears to be unprecedented, makes it impossible for counsel to provide effective assistance to Mr. Nordlicht, as it prohibits counsel from independently seeking information from the most important—and perhaps the only—witnesses in the case: those whom the government might call in its case. The district court’s order unconstitutionally impairs the defendant’s ability to effectively prepare his defense, and it does so in a way that cannot be “unscrambled” on appeal—making it the rare case appropriate for mandamus. This Court should grant mandamus and vacate the order.
What happens next is somewhat amusing.
Clearly realizing that the judge’s order was way over the top, the government sent a letter to the judge seeking “clarification of the court’s order entered on August 18.” The government explained that what the judge must have meant—her language notwithstanding—was that Quinn Emanuel shouldn’t send intimidating letters to witnesses, not that they couldn’t contact witnesses at all. Because that would be, you know, unconstitutional.
On August 28, the judge “clarified” her order. According to Law360, she said that there is nothing that would prevent Quinn Emanuel or any defense lawyer from speaking to a potential witness or to a witness’ counsel. She went on to say what was prohibited was applying pressure on these witnesses not to testify or to change their statements or to threaten their employment status. Law360 quoted her as saying that “the tone of the letter was very aggressive, and that’s what I take issue with.”
Refusing to Buckle
In the end, thanks to Quinn Emanuel and Mr. Nordlicht’s refusal to buckle, the court reached the right conclusion. Of course defense counsel can contact prior potential witnesses. It’s absurd for a trial judge to say that this is disallowed, particularly where there is no evidence of actual tampering.
It’s also ironic to see a judge to describe the tone of the letter as “very aggressive.” Some prosecutors use an unbelievably “aggressive” tone with witnesses, trying to encourage them to testify against the defendant and cooperate with the government. This letter is nothing.
This letter is nowhere close to witness intimidation, and the government knew that from the start. If they thought it was actually witness intimidation, then they would have done much more than send a letter to the court about it. Perhaps the prosecutors just wanted Quinn Emanuel not to try so hard to contact witnesses?
When I see prosecutors responding like this to my efforts to develop a defense in a case, I think one thing: they are scared.
The only “aggressive” step here was for the government to report this letter to the court and for the government to describe it as “tantamount to witness intimidation.” It’s too bad the court didn’t recognize the government’s complaint for what it was—an effort to chill the defense. Kudos to Quinn Emanuel for not backing down.