By Sara Kropf
In most white-collar cases, intent is the key issue. The government generally has to prove that the defendant intentionally acted to break the law and it wasn’t simply a mistake or an oversight.
Circumstantial evidence is enough to prove intent, and, at trial, prosecutors routinely argue to juries that they can infer criminal intent from the defendant’s acts.
For example, take a wire fraud case based on misleading statements made to investors about a company’s financial position. The prosecutor may point out that (1) the defendant’s business needed investors’ money, (2) the defendant had access to the company’s financial statements before he made the statements but didn’t confirm them, (3) the defendant said it was just an “oversight” that he gave the investors the wrong numbers.
Therefore, the defendant must have intended to defraud the investors, right?
This isn’t a travesty of justice or anything. Directly proving intent is usually impossible. Unless someone is dumb enough to write down, “I intend to defraud people today,” then proof of intent will have to come from circumstantial evidence.
As often as prosecutors make these arguments, judges and juries routinely buy them.
When it comes to finding if a prosecutor acted intentionally for a Brady violation, though, the bar for proving intent is set a lot higher. Judges who consistently conclude defendants are guilty based on circumstantial evidence of intent suddenly look for every reason to ignore circumstantial evidence that a prosecutor intended to withhold Brady material to prejudice the defendant.
A recent case in New York is a good example. The court found a Brady violation and even dismissed the charges—an incredibly rare outcome. However, the court refused to find that the prosecutor deliberately withheld Brady material. This material included a 38-minute sworn statement by the key cooperating witness (who received the supposed bribes) that he never took any bribes at all.
The Facts – Lunches and an Internship
In People v. Pierides, Kyriacos Pierides was charged with “corrupting the government in the first degree” and bribery. Mr. Pierides is an engineer who worked for a company that sought NY city contracts. He was charged along with Manny Madu. Madu was a mid-level city manager in charge of certain construction contracts for the Department of Environmental Protection (DEP).
The indictment alleged that Pierides (along with others) bribed Madu to learn confidential information about the DEP bidding process. Madu pleaded guilty and cooperated with the government.
For what it’s worth, two of the bribes are described as “modest lunches and dinners” and an internship for “Madu’s brother’s colleague’s daughter.” Maybe it’s just me, but unless a lot of cash also exchanged hands, that’s pretty weak evidence of a bribery scheme.
A couple of key events with respect to the Brady issue:
- The lead prosecutor was ADA Diana Florence. In April 2018, she said she was allowing “open file” discovery and provided Mr. Pierides’ email from Madu’s account.
- In June 2018, defense counsel asked about Brady material and the judge reminded the prosecutor about her obligations. She said “I don’t know of any Brady, anything that could be construed as Brady. I turned [over] every big of evidence I expect to use in this case.”**
**In federal cases, the government has to turn over everything it plans to use in the case under Rule 16. But Brady is different. It requires the government to turn over all exculpatory material to the defense, even if the government has no plans to use it at trial.
- At the same hearing, there was a long colloquy about whether the government had to turn over all of a defendant’s seized email account to that defendant. The judge said “Let me lay out a principle here. The [p]eople are entitled to their own emails if they were seized by the government.”
- In July 2018, Mr. Pierides filed a demand to produce all of his emails and everything seized through the search warrant. He did so again in November 2019 and December 2019.
Trial was set for January 6, 2020, and then moved to January 21, based on the government’s request to provide additional discovery.
The government then turned over the following:
- 14,000-15,000 pages of discovery.
- Three dozen “folders” containing checks, tax and financial records, arrest reports, emails, audio recordings, transcripts, and proffer and interview notes.
- Reports showing the electronic data taken from Madu’s phone.
- A “38-minute sworn and taped pre-indictment statement by Madu to New York City Department of Investigation investigators assigned to the [Department of Environmental Protection], in which Madu swore that he broke no laws and accepted no bribes from contractors.”
- 135,900 emails from Madu’s accounts and computers, including 850 to/from Mr. Pierides.
- 5 terabytes of data from Madu’s computers.
- Certain disclosure forms on which Madu swore he had taken no bribes.
The Court Grants the Motion to Dismiss the Indictment (!)
Mr. Pierides filed a motion to dismiss the indictment based on the extreme discovery delays. He pointed to all of the late discovery provided by the government, as well as the prejudice that resulted: he could not work on city contracts while the case was ongoing and rushing to trial without time to review the material would impair his defense.
The government responded that there was no court “order” requiring disclosure, that their tardiness was not deliberate and that the disclosed material was not relevant to the trial.
Also, oops, it was just an “oversight” that the material was turned over on the day trial was supposed to begin.
No harm, no foul.
The court had no trouble finding a Brady violation. He concluded that the judge’s statements (his “principle”) at the June 2018 hearing was a court order, and the government had failed to follow it. Plus, there is a general order from the Chief Judge of the Court of Appeals that the government always had to disclose Brady material. There’s also the pesky matter of, you know, the case from the United States Supreme Court.
Dismissal, according to the court, was the “appropriate sanction under the unique circumstances of this case.” The “scope of the late disclosures is staggering,” given the amount of data produced and the late timing.
In particular, the government late-produced Madu’s sworn denial of illegal conduct, which was “essential to the development of a defense strategy.”
But…the Conduct Was Not Deliberate?
There is simply no way that the ADA did not realize that Madu’s sworn statement denying illegal conduct was not Brady. That would be Exhibit A in any cross examination of him.
The court even found that the government’s explanations were “troubling and inadequate.” According to the government, it was just an “oversight” that they didn’t search for Mr. Pierides’ name in the electronic data it had for over a year before trial. The issue just “fell off” the ADA’s “radar” and was not “best practices.”
In fact, the government admitted it had this Brady material the whole time and never produced it to the defense.
The Conclusion Does Not Follow from the Facts
This conclusion that the government’s conduct was not intentional makes no sense whatsoever.
The government knew it had Brady material: The government knew it had significant Brady material that would directly undercut testimony its key cooperating witness a trial. Plus, it hadn’t even bothered to search for Mr. Pierides’ name in the material it did have. This is not even a close call.
It had the material for a long time: It had that material for well over a year and never turned it over. It was not something that the government obtained at that last minute through a trial subpoena and turned it over right away.
The government was on notice that the defendant wanted the material: The defense asked for Brady material over and over and the government ignored the requests.
The court ordered it: The court in June 2018 told the government to turn over Brady material and the lead prosecutor said she wasn’t aware of any. (How could the lead prosecutor not have known about the recorded interview of a charged defendant?)
The government benefited by not turning it over (or what prosecutors usually call “motive”). The material would have substantially helped the defense and made it much harder for the government to win at trial.
The government had no plausible explanation. The government’s only explanation was that it was an oversight.
A judge evaluating a defendant’s intent under this same set of facts would have no problem finding him guilty. Simply saying it was a mistake has never been a viable defense in any court I’ve been in.
Why is a prosecutor held to a higher standard when it comes to intent?
I had a recent case where the court found a Brady violation and reversed a jury verdict. But the facts there supported the court’s conclusion that it wasn’t intentional. The incomplete material had been provided by a government agency at the last minute and the prosecutor had no role in deliberately holding back material.
I applaud the court for dismissing the indictment and one can hope that the ADA’s supervisor is taking some action to make sure this doesn’t happen again.
This is all well and good. But courts should apply the same standard for intent to prosecutors as to defendants.
What’s good for the goose and all that.