Legal Ethics, U.S. Attorneys Offices, White-Collar Crime

Did An AUSA Knowingly Produce a Forged Document Just to Get a Forfeiture Judgment?

Forfeiture law is insane.

There are lots of reasons to hate criminal forfeiture. You could dislike forfeiture because of the way law enforcement uses it to target poor people, the way law enforcement takes small sums of money that no reasonable person would fight over, the way some law man down south threatened parents with choosing between being arrested and having their kids put in foster care or forfeiting their cash, or even the way it creates insane incentives for cops to fund themselves by taking money from people whether they ought to or not. (For examples of this stuff, see either The New Yorker or The Daily Show, depending on whether you’re currently trying to impress someone).

Law enforcement wants that forfeiture money. And, as the examples above show, they’re going to do a lot to get it.

Though now, in Baltimore, a forfeiture case has led to an allegation that a federal prosecutor knowingly produced a forged document in a case.

If you believe a law enforcement officer’s testimony under oath.

Samantha Banks, a real estate investor, landed at Baltimore Washington International Airport with $122,000 in cash. The federal government filed a forfeiture action to take the cash after a drug dog alerted on it.

Her lawyer, C. Justin Brown, filed a motion to dismiss the forfeiture action (h/t Baltimore City Paper). Here’s the opening paragraph:

Claimant Samantha Banks, by and through counsel, C. Justin Brown, pursuant to the duty of candor and Maryland Rules of Professional Conduct 3.3 and 3.4, hereby moves this Honorable Court to dismiss this case with prejudice. This motion is based upon the Government’s production, during discovery, of a document that it knew to be fabricated. The document, a back-dated certification of a narcotics K-9 team, was generated by members of the Maryland Transportation Authority Police after the original document was lost. Two federal prosecutors became aware of how the document was produced, yet they passed it on to opposing counsel in a manner that obscured the truth. The certificate is material evidence to this case, and therefore dismissal is warranted.

Wow. Strong words.

Here’s what Brown lays out. He sent document requests to the government. The AUSA sent him a cover letter with a bunch of documents, including the certification of the drug dog that alerted on the money. The cover letter said “Please note the Narcotic Certification (bates number 0033) is a reproduction of the original certificate.”

Brown was able to depose the head dog trainer at BWI (I’m paraphrasing — his business card says something else). Here’s what was said at the deposition about the certification (deposition transcript here):

Q. Do you know how this document was generated?

A. Yes, I do.

Q. Can you tell me how it was generated?

A. Through phone conversations with Officer McCarty and Joe Lambert.

Q. Okay. Is this an actual authentic certification?

A. No.

Q. Is this a fraudulent certification?

A. I believe so.

Ok, so a foundational document to the case is fraudulent. That looks bad.

The witness goes on to explain that folks kind of figured when the dog was likely trained, so they just forged the certification on a guy’s home computer.

But maybe this isn’t what it looks like. Maybe AUSAs didn’t know?

Alas, the deposition continues:

Q. Did you — were you concerned about the production of this document [in the litigation]?

A. Yes.

Q. And did you inform anyone about this document?

A. Yes.

Q. Did you inform the US Attorney’s Office of this document?

A. Yes.

Q. And you told them that you believe this to be an inauthentic document?

A. Yes.

As it happened, this exchange at the deposition prompted some conversations between Brown and the AUSAs on the case. The AUSAs explained that when they said, in an earlier cover letter, “[p]lease note the Narcotic Certification is a reproduction of the original certificate” that was an adequate disclosure that it had been created on some dude’s home computer when they couldn’t find the original.

At first blush, the government’s position may seem like a stretch. But maybe not. If someone tells you that the painting you’re buying is a Matisse reproduction, your understanding is that someone knew what the original Matisse looked like, and just painted something that would look similar.

Part of me is really hoping that the government’s response (which has yet to be filed) will take this position. I would love to see the Department of Justice argue that a “reproduction” of a document can be made using either a photocopier or Photoshop.

But we’ll have to wait and see. In the meantime, these are serious allegations.

And they’re more serious when you realize that another federal judge in the same district called out one of the same AUSAs playing fast and loose with what he tells the court. As the Baltimore City Paper tells it:

In essence, [United States District Judge Paul] Grimm accuses [AUSA Stefan] Cassella of making disingenuous pleadings in [a case] because his arguments ignored the court’s contrary position in prior forfeiture cases Cassella had brought since he was hired in 2009 by Maryland U.S. Attorney Rod Rosenstein.

“While I do not find Counsel’s failure to disclose this history of directly contrary rulings to be a violation of his duty of candor to the Court,” Grimm wrote, “it comes uncomfortably close.”

Man, the government really wants those forfeiture judgments.

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