Federal prosecutors in New York acknowledged telling a “flat lie” to a criminal defendant’s legal team while trying to downplay their mishandling of evidence in the botched trial of a businessman accused of violating U.S. sanctions on Iran.
The embarrassing revelations about what many consider the U.S.′ top criminal investigating office were contained in a dozens of private text messages, transcripts, and correspondence unsealed Monday, over the objection of prosecutors, at the request of The Associated Press.
The release of the records followed a ruling last week in which U.S. District Judge Alison Nathan urged the Justice Department to open an internal probe into possible misconduct by prosecutors in the terrorism and international narcotics unit in the U.S. Attorney’s Office for the Southern District of New York.
While Judge Nathan found no evidence that prosecutors intentionally withheld evidence from lawyers representing an Iranian banker, Ali Sadr Hashemi Nejad, she said they made a “deliberate attempt to obscure” the truth and attempted to “bury” a key document that might have helped the defense.
The mistakes were serious enough that even after winning a conviction, prosecutors dropped all charges against Sadr.
The documents unsealed Monday provide a detailed look at how the case against Sadr began to unravel in the span of a few, turbulent hours last March as the trial was nearing completion.
On a Friday night, a bank record surfaced that the line prosecutor, Assistant U.S. Attorney Jane Kim, wanted to introduce as evidence. But she realized she hadn’t yet shared it with Sadr’s attorneys, a potential violation of rules intended to ensure a fair trial.
Kim initially suggested turning it over immediately to the defense. But a colleague, Assistant U.S. Attorney Stephanie Lake, recommended they “wait until tomorrow and bury it in some other documents.”
The trick didn’t work. Sadr’s attorneys identified the document as new within an hour. They complained to prosecutors, saying the document — a letter from Commerzbank to the U.S. Treasury Department’s office charged with enforcing sanctions — would’ve helped in their defense.
The prosecutors, believing the document had no exculpatory value to the defense, then made up an excuse, telling the attorneys they thought the record had been previously produced.
By late that Sunday night, Judge Nathan had given prosecutors one hour to explain themselves.
The unit’s supervisors, Emil Bove and Shawn Crowley, then got involved. In a exchange of text messages, Bove acknowledged that the initial excuse the trial lawyers had given to Sadr’s attorneys was a “flat lie.”
Crowley, realizing the gravity of the mistake by her subordinates and anticipating a stiff reprimand, confides to Bove that instead of looking at prosecutors’ closing arguments she was going to “devote the rest of the night to cleaning out my office.”
“Ugh. These poor guys. This is going to be a bloodbath,” she wrote in a moment of frustration early Monday before appearing in court.
Bove concurs and acknowledges that the trial team had “done some pretty aggressive stuff here over the last few days.”
“Yeah we lied in that letter,” Crowley responds.
Amid the back and forth with his team over the evidence disclosures, Bove talked of how prosecutors were going to “smash” the defendant, and made a lewd comment about the defense attorney, Brian Heberlig.
“These disclosures expose the underbelly of a failed prosecution that never should have been brought,” Heberlig, a partner at Steptoe & Johnson, told the AP.
Crowley, who has since entered private practice with Kaplan, Hecker & Fink in New York, did not respond to a request for comment. Bove did not respond to an email request for comment.
Stephen Gillers, an ethics professor at the New York University School of Law, said the conduct of prosecutors in the case, as described by the judge, was “alarming.”
“If it can happen in what many lawyers consider the nation’s premier prosecutorial office, where can’t it happen?” said Gillers. “The behavior here is what one might expect of an overly aggressive lawyer representing a private party. But prosecutors have a duty to do justice ahead of any desire to win.”
A spokesperson for the Southern District of New York declined to comment but pointed to past comments by acting U.S. Attorney Audrey Strauss detailing actions her office has taken to address the court’s concerns.
In December, Strauss said her office had adopted policy changes, expanded training and enhanced use of technology to mitigate the risk of “poor communication” and facilitate better supervision.
“This Office holds itself to the highest ethical standards,” Strauss wrote the court. “Even conscientious and hard-working prosecutors and agents can make mistakes. When such problems do arise, the Court should expect our AUSAs to disclose them promptly and work diligently to fix them — and the Office to do its part to identify and address the errors’ root causes.”
Bove, who still co-heads the Terrorism and International Narcotics Unit, is responsible for overseeing high profile cases including the prosecution of Venezuelan President Nicolás Maduro and top allies on drug charges and the investigation of Cesar Sayoc, a supporter of Donald Trump who admitted to sending 16 pipe bombs to prominent Democrats and CNN in 2018.
Additional misconduct surfaced after the trial when prosecutors admitted to obtaining documents from hundreds of FBI searches of evidence compiled through search warrants in a separate investigation authorized by the state of New York. Such warrants limited the searches to evidence of state crimes only, not federal violations. Had that fact been disclosed before trial, the evidence may have been banned from being used against Sadr.
Dick Gregorie, a retired assistant U.S. attorney in Miami, said any misrepresentation in a court is a serious offense that should be treated accordingly.
“This is the sort of stuff that gets you fired,” said Gregorie, who himself was a supervisor and early in his career indicted Panamanian strongman Manuel Noriega. “When you are an officer of the court, you better be absolutely certain that what you’re saying is accurate and you’re not playing games.”