On September 16, 2020, a Manhattan federal judge – Judge Alison J. Nathan – issued a scathing order critiquing prosecutors of misleading the court about the disclosure of potentially exculpatory evidence.  The court further ordered two Southern District of New York unit chiefs and all the line prosecutors in the case to answer questions under penalty of perjury regarding their conduct in the case.

The case is United States v. Ali Sadr Hashemi Nejad, Case No. 18-cr-224(AJN) (S.D.N.Y. Sep. 16, 2020).  Mr. Sadr was indicted in 2018 in connection with a purported scheme to evade U.S. sanctions against Iran and launder money.  The indictment alleged that Sadr’s company contracted with a unit ofs Venezuelan state-owned oil company, Petroleos de Venezuela SA, to build an infrastructure project.  It was further alleged that Sadr and others had Venezuela send U.S. dollars to the Swiss bank accounts of a trading house that Sadr had incorporated in Switzerland and a Turkish construction company, using lenders in New York as intermediaries.  The government then claimed that Sadr transferred the money around the world, including to Iran.  Sadr maintained his innocence and testified at trial that he never believed his connection to the construction project in Venezuela violated any laws and he further denied sending money to Iran.  After a two-week trial, a jury found Mr. Sadr guilty on all counts except the money laundering conspiracy charge.

Following the trial, while Mr. Sadr’s motion for a new trial was pending, a U.S. Attorneys Office Criminal Discovery Coordinator and Office of Professional Responsibility Officer began looking into the disclosures made in the case.  As a result of the inquiry, the government decided it was not in the “interest of justice” to further prosecute this case.  The government was seeking to make the case go away, hoping it wouldn’t have to address its misconduct.

The government took the extraordinary step of asking the Court to enter an order of nolle prosequi against Mr. Sadr and his co-defendant.  Mr. Sadr did not agree that the case be nolle prosequi and demanded that the verdict be vacated, a motion for new trial granted, and the indictment dismissed.  The government agreed.

When the court received the request for dismissal, it announced that while the dismissal ended the criminal proceeding as to Mr. Sadr, the government’s failures and misconduct would need to be addressed separately.  The court noted that the “dismissal of charges is not a basis for sweeping the government’s repeated failures under the rug.”  The court directed the government to provide more information about its disclosure failures and misstatements.

Following are some of the more egregious behaviors disclosed in the government’s response:

  • Federal investigators were mining electronic evidence without a valid warrant to find materials to aid FBI interviews. This was contrary to claims made during the pre-trial litigation.
  • Prosecutors realized in the middle of trial that they had not turned over a document that was exculpatory to the defense. Instead of immediately turning over the document, the prosecutors strategized for over 20 hours how best to turn it over.  The strategies included “burying” it in evidence of already disclosed documents, which after looping in more prosecutors, is exactly what they did.
  • Prosecutors failed to identify the document as newly produced to the defense in order not to draw attention to it.
  • The government misled the court by claiming it had identified the document as newly discovered to the defense.
  • The government produced exculpatory documents after the trial in the case had ended.
  • The government failed to produce FBI interview memoranda that may have contained exculpatory information.

The court noted its concern that the issues raised in this case were part of a larger pattern.  The court intimated that similar issues may have gone undetected in countless other cases.  The court suggested that the prosecutors involved should be the subject of a referral to the Department of Justice’s Office of Professional Responsibility.  Additionally, the court ordered that the acting U.S. Attorney Audrey Strauss make all line prosecutors in the Southern District of New York read the opinion and provide certification to the court that they done so.

The court further suggested that the Department of Justice must implement policy and training procedures that instill in FBI agents the permissible limits of conducting electronic searches pursuant to warrants in a way that conforms to constitutional requirements.  Judge Nathan also ordered that AUSAs must be trained to conduct proper due diligence before making misleading representations to the Court about their conduct.

To be fair, the court repeatedly commended the prosecutors for ultimately doing the right thing and dismissing the case.  Far too often, when faced with misconduct allegations, prosecutors decide to dig in their heels in further.  This Order shines a light on alarming misconduct.  Hoepfully, this scruity will  breathe life back into the public faith in criminal justice that has been slowly eroding across the nation as a result of government misconduct.  Every single prosecutor and every single criminal defense attorney should read this opinion.  It is a haunting reminder that prosecutors should be out to accomplish justice and not a victory at all cost.

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