An AUSA Has His 82 Year-Old Neighbor Arrested Over A Dispute About A Fence

For a federal prosecutor, every legal problem becomes, at some point, a criminal case.

In Democracy in America (affiliate link), de Tocqueville observed that in America, every political problem becomes, at some point, a legal problem.

The modern version, is that, for a federal prosecutor, every legal problem becomes, at some point, a criminal case.

An AUSA in the U.S. Attorney’s Office in Manhattan is in a fight with his 82 year-old next door neighbor over where a fence dividing their property should be placed.

He’s an AUSA who has been previously mentioned here on Above the Law — Arlo Devlin-Brown, the chief of the public corruption unit in the U.S. Attorney’s Office for SDNY.

He’s also the guy who prosecuted his former law school classmate Matthew Martoma.

As it happens, he’s not only a fan of criminal charges for his law school classmates, but also for his neighbors.

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Apparently, Devlin-Brown built a fence (or, more likely, had one built. I mean, he’s not Amish). As New York’s ABC Affiliate reports, things broke bad after that.

His next door neighbor, Sylvia Kordower-Zetlin, an 82 year old retired teacher, believed that the fence was built on her property. She reports that she had two surveys done, and each said the fence was on her land.

Unhappy with the location of the fence, she spray painted her address on it – apparently to mark the fence as on her property.

Let’s think about the options that Devlin-Brown had at that point:

He could have complained to her and tried to talk it out (though it seems that had already happened with poor results (if you believe Devlin-Brown’s wife)).

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He could have had his own survey done and tried to reason with her.

He could have brought a lawsuit against Kordower-Zetlin. But, of course, that would have cost money.

Instead, AUSA Devlin-Brown had his neighbor arrested for making graffiti and trespass.

When I first heard about the case, I assumed he was charging her federally with some kind of fraud, based on what he believes is a false statement on the fence. Perhaps, if she ordered the spray paint from Amazon, he could try mail fraud?

But I was wrong — in a praiseworthy bit of restraint, Devlin-Brown did not make a federal case out of it.

It’s a continuation of a trend — that same US Attorney’s Office let the Manhattan D.A. take the Dewey fraud charges, and now they’re letting another high profile case go to the state prosecutors.

Of course, the Manhattan D.A.’s decision to take this case couldn’t possibly have had anything to do with Devlin-Brown’s day job. Because the guy in charge of prosecuting abuse of official power cases is the last person you would ever think would abuse his position of power in order to resolve a purely personal dispute.

But, if he had pulled a few strings to get this case going, it would have been a tactically nice move on his part. Since a “making graffiti” charge requires proof that the property is someone else’s, the state prosecutor will have to prove where that fence lies. So Devlin-Brown wouldn’t have to shell out any cash to settle his legal dispute like some sucker who doesn’t work for Preet Bharara.

Here’s an interesting question though, that perhaps our New York lawyer friends can answer (forgive me, my New York graffiti defense practice hasn’t taken off – though I did enjoy Exit Through the Gift Shop and I’m very impressed with what’s been happening in Bushwick lately).

Does a making graffiti charge in New York require that the government prove that the person knew that the property was someone else’s?

In other words, is a person’s belief that the property was her own a defense to a making graffiti charge?

Because, if so, Devlin-Brown’s decision to have this woman arrested and prosecuted is really off-base.

HARLEM PROPERTY DISPUTE BETWEEN ELDERLY WOMAN, PROSECUTOR LEADS TO ARREST [WABC]
EXCLUSIVE: 82-year-old woman fighting charges after arrest for spray-painting fence in property dispute with neighbor [NY Daily News]

Earlier: Harvard Law Students Are The Best — At Making Up Fake Transcripts
The Mathew Martoma Case, By The Numbers


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.