I recently finished reading the Carson briefing—the defendants just filed their reply to the government’s opposition to the motion to dismiss—and it makes for some great reading.
I want to talk out loud, so to speak, about one aspect of the issue. As my wife says, I want to think it through, out in the open. One caveat: I’m not an expert on Brady. I’ve been a state prosecutor, and we had a similar rule, but I’ve never prosecuted a federal criminal case. So take my invocations of Brady obligations with a large grain of salt.
The issue is whether Control Components, Inc., because it cooperated in the investigation, became a government agent. If it did, as defense claims, then possibly the government would have a duty to explore CCI’s files for exculpatory information under Brady. The defendants are arguing that CCI was, that the government didn’t, and therefore there was a constitutional violation requiring dismissal of the indictment.
I don’t know whether 9th Circuit precedent supports defendants’ claims. It’s fascinating on an intellectual level. Tinged, for me, with a this-is-an-academic-question aura because I’m pretty well convinced these guys are guilty. So I’m generally inclined to see a Court deny these motions.
But on an academic level, this is really interesting stuff. The government charged the Travel Act, and the individual defendants are fighting the case (some of them, anyway; two defendants pleaded guilty recently.) [ed. note: is it more properly “pleaded guilty” or “pled guilty?” Please respond in the comments.]
So I don’t know how Judge Selna, or the 9th Circuit if there’s an appeal, will decide this. But generally? It’s an interesting thing to think about.
I think it’s possible. Let’s think it through.
Assume for a moment that if CCI were considered “government,” then the DOJ would have an obligation to search their files for exculpatory information. I don’t think that assumption is too radical.
The government argues that it’s an easy rule. The government can’t be responsible for documents in the possession, custody, or control of a third party, no matter how much that third party cooperates in an investigation.
This brings up an interesting side question (I seem to be raising more questions than I can answer, aren’t I?), what about when the government appoints a monitor? Now all of a sudden, you have a person inside the company, with access, who could arguably be called a government agent.
But the thing that really sticks in my craw is this: under 18 USC § 1001, hasn’t the government said, argued, that lying to a private person who is conducting an internal investigation could be considered lying to the government for purposes of that statute? The US Attorney’s Manual, Criminal Resource Manual § 913 deals with what is a “department or agency,” who can’t be lied to. The case that’s cited in The Book is US v. Candella. That was a case where the false statement was made in a form submitted to the New York state government, but it was known by everyone that the program being applied to was a federal program, and the money came from the feds. That was found to be sufficient. There are other similar cases (and some too that limit the concept). But generally, if the feds will be the ultimate recipient of the lie, that could be enough.
This bothers me in reference to the Carson case. Because how can someone be “government” for purposes of § 1001, and at the same time, not government for purposes of Brady?
Let’s posit this: someone at CCI, during the investigation and knowing that in-house counsel were going to turn the information over to the government, submits two documents to the Company. The first document is incredibly exculpatory, the second document contains a material falsehood.
As I understand the government’s position, they could argue that they don’t have to search for the first document because CCI isn’t the government, so their Brady obligations don’t attach; and at the same time they could argue that because the documents from CCI’s investigation were government-bound, that the person could be prosecuted for false statements to a federal investigator based on the second document.
I have a problem with that result.
What shocks me is that the Carson defendants never raise this argument. They talk about bad faith—good luck with that one—and talk about the proper materiality standard, but they don’t talk about the inherent inconsistency in the government’s positions on § 1001 and the charge here.
Am I the only one who sees it like this? Or am I wrong? Is it not a problem to say someone is a government agent for one purpose, but not for another? I keep in mind that the “not for another” here is a constitutional protection for a person whose liberty is at stake.
I don’t have a good answer. I could be totally off base.
As I said, I’m just thinking out loud.