National Association of Former United States Attorneys
April 2012

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Stevens Case Leads to Call for Legislative Reform



More than 100 former federal prosecutors, including many members of NAFUSA, have joined more than 125 signatories of  Call for Congess to Reform Federal Criminal Discovery (click here to read the full statement as well as review a list of all signatories to date). The Call for Reform, dated March 15, 2012, states that "we have seen a troubling number of cases involving failures to disclose evidence to the defense pursuant to Brady v. Maryland and its progeny. It cites the prosecution of Senator Ted Stevens as "most notable."


The Call for Reform concludes:


Only federal legislation can adequately address these continued violations by federal prosecutors, creating a uniform standard for what must be disclosed and what remedies will exist for non-disclosure, and sending a strong message to the DOJ that there will be consequences when federal prosecutors violate their discovery obligations.


The legislation that we envision would do the following:


1. Provide that the scope of the prosecution's discovery obligation extends to all information-regardless of admissibility at trial-that could reasonably be considered favorable to the defendant, with respect to pretrial motions, guilt, impeachment of witnesses, or sentencing. Requiring disclosure of all "favorable" information requires less room for interpretation on the part of the prosecutors than a materiality standard


2. Clarify that prosecutors have an obligation to exercise due diligence in obtaining any favorable evidence, beyond what is in their possession, from other parties involved in the investigation and/or prosecution, including federal, state and local law enforcement or other agencies.


3. Require that prosecutors disclose favorable information without delay, as soon as they become aware of it, thus clarifying that the Jencks Act does not trump this disclosure requirement. If the government has legitimate objections to disclosure due to concerns about a witness' safety, a desire to protect classified information, or other reasons, prosecutors may raise those concerns with the court, which can issue a protective order if appropriate.


4. Impose an appropriate remedy in the case of non-compliance, including exclusion of evidence or witness testimony, a new trial, dismissal of the charges, or other remedies to be determined by the court. Courts generally have the power to fashion appropriate remedies under their general supervisory powers, but this law would clarify that the court shall use that power to fashion an appropriate remedy each time a violation of the disclosure requirement has occurred.

On March 15, 2012, Senator Murkowski introduced a bill that closely mirrors the reforms called for in the statement. The Department of Justice has issued a statement expressing opposition to any legislation reforming criminal discovery practices.

Wainstein Defends AUSA in Stevens Case and Joins Cadwalader


Ken Wainstein 

As an aftermath of the investigation and prosecution of Senator Ted Stevens, United States District Judge Emmet G. Sullivan, District of Columbia, appointed Special Prosecutor Henry Schuelke to investigate potential criminal contempt on the part of the government prosecutors. On March 15, 2012, Schuelke's 525 page report was publicly released, concluding that the government's prosecution of Senator Stevens was "permeated by the systematic concealment of significant exculpatory evidence."


NAFUSA member Kenneth Wainstein represents Assistant United States Attorney Joseph W. Bottini, one of the prosecutors implicated by the findings of the Schuelke report. In a lengthy hand delivered letter to Attorney General Eric H. Holder, Jr., Wainstein writes:

Our objection to the Special Prosecutor's findings is very simple. We take no issue with the finding that the investigation and prosecution of Senator Stevens were marked by mistakes, miscalculations, and oversights that led to a series of discovery violations. AUSA Bottini acknowledges that he played a role in those violations, and he will always live with a profound sense of personal and professional regret for the effect they had on the Stevens trial and on the reputation of the Justice Department. However, we do take issue-very strong issue-with the finding that these missteps were intentional and were something more than simple human errors on the part of an AUSA who was working under extremely difficult circumstances. That finding of intentional misconduct is completely unsupported by the evidence, and is the product of an investigative process that was marked by selective fact-finding and faulty legal analysis.

On Wednesday, March 28, 2012, Schuelke testified before the Senate Judiciary Committee. In addition, the Department of Justice has yet to release the result of its internal investigation of  the prosecution's handling of the Stevens case. Wainstein, therefore, will be continuing to fight to keep AUSA Bottini's job and reputation at the Justice Department.


Wainstein spent 19 years at the Department of Justice, including time as the Director of the Executive Office for U.S. Attorneys; General Counsel and then Chief of Staff to Director Mueller at the FBI; U.S. Attorney for the District of Columbia; and the first Assistant Attorney General for National Security. He also served as Homeland Security Advisory to President Bush. Wainstein has also been active at NAFUSA, having served on panels at the past two national conferences.


On March 26, 2012, Cadwalader, Wickersham & Taft announced that Wainstein had left O'Melveny & Myers to join Cadwalader's D.C. office as a partner in the firm's white collar defense and corporate investigations practices. Wainstein cited his relationship with Michael Horowitz and others at the firm as factors in his decision to move.




Dreeben To Present Supreme Court Review

 Michael Dreeben and Eric Holder


On Friday, October 12, 2012, at NAFUSA's national conference in Atlanta, Deputy Solicitor General Michael R. Dreeben, shown above with Attorney General Holder, will present the annual review of the United States Supreme Court term which will end in June. Dreeben has served more than 24 years in the Department of Justice. His principal responsibility is federal criminal appellate law. He has argued more than 80 cases before the United States Supreme Court, and numerous cases in the courts of appeals, including en banc arguments in nine circuits. He has twice received the Department of Justice's second highest award- the Attorney General's Award for Distinguished Service. He is a graduate of Duke Law School.


Larry Finder Joins Baker & McKenzie 



NAFUSA member Lawrence D. Finder will be joining Baker & McKenzie in its Houston office on April 2, 2012. Finder served as United States Attorney for the Southern District of Texas in 1993. He joined the Houston office of Haynes and Boone, LLP, where is has spent the past 18 years after leaving the US Attorney's office.


Finder cited the depth of Baker's international platform with 70 offices in 42 countries which will further position Finder to meet the needs of his oilfield service, energy and global logistics clients. Much of Finder's practice consists of global elements. He will also be working with the Baker team, headed by former DAG Paul McNulty, that conducts cross-border investigations and advises clients on the international nuances of corporate governance, trade control, and compliance issues.


Finder grew up in Chicago and received his law degree at Loyola University of Chicago Law School. He plans to work out of Baker's Chicago office a few days every month.



Nina Perales Joins Immigration Panel




Nina PeralesNina Perales, shown right, Vice President of Litigation for MALDEF, the Mexican American Legal Defense and Educational Fund, has joined the NAFUSA panel on immigration issues. The panel will be held on Saturday morning, October 13, 2012 in Atlanta, and will include Charlie Savage as moderator and Alexandro Mayorkas, the Director of United States Citizenship and Immigration Services at DHS.


In her role at MALDEF, Ms. Perales supervises the legal staff and litigation docket in MALDEF's offices throughout the United States. Ms. Perales is known for her work in voting rights, including redistricting and vote dilution cases. Her legal victories include LULAC v. Perry, the Latino challenge to Texas 2003 congressional redistricting, which Ms. Perales led through trial and argued successfully in the U.S. Supreme Court. Ms. Perales also specializes in immigrants' rights litigation, including leading cases striking down anti-immigrant laws and recovering civil damages from violent vigilantes. On March 21, 2012, the U.S. Court of Appeals for the Fifth Circuit ruled the City of Farmers Branch, Texas, violated the Constitution by passing a housing ordinance aimed at driving out Latinos. Ms. Perales was lead counsel for the successful plaintiffs-appellees, and argued the case before the Fifth Circuit.


Ms. Perales received a Bachelor's degree from Brown University and earned her J.D. from Columbia University School of Law.


2012 Conference Sponsors

GreenbergTraurig logo

Cooley logo 
National Association of Former United States Attorneys (NAFUSA).
Richard A. Rossman
Executive Director
27 Oakland Park
Pleasant Ridge, Michigan 48069
Phone: 248-548-8289

In This Issue
Stevens Case Leads to Call for Legislative Reform
Wainstein Defends AUSA in Stevens Case and Joins Cadwalader
Dreeben To Present Supreme Court Review
Larry Finder Joins Baker & McKenzie
Nina Perales Joins Immigration Panel
Horowitz and Keneally Confirmed by Senate
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Horowitz and Keneally Confirmed by Senate

On March 29, 2012, the United States Senate confimed Michael E. Horowitz to be the Inspector General at the Department of Justice and Kathryn Keneally to be the Assistant Attorney General for the Tax Division. Both were nominated by President Obama in 2011 and their confirmations ended months of delay in the Senate.Michael Horowitz  

Horowitz served as Chief of Staff to Assistant Attorney General (and Past President of NAFUSA) James K. Robinson in the Clinton Administration (succeeding NAFUSA Executive Director Rich Rossman, Robinson's first Chief of Staff). Horowitz also served as Chief of Staff to Michael Chertoff, the first Assistant Attorney General for the Criminal Division in the Bush Administration. Horowitz also served on the U.S. Sentencing Commission. He leaves a partnership in the Washington, DC office of Cadwalader, Wickersham & Taft. He is a graduate of Harvard Law School.


Kathryn Keneally

Keneally has been a partner at Fulbright & Jaworski in New York, specializing in tax, white collar criminal defense and commercial litigation. She is a graduate of Fordham Law School.

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