A couple of months ago, this post reviewed the living hell that former Merrill Lynch banker James Brown had been living for the past seven years as he he attempted to salvage his reputation and career after being targeted in the now-thoroughly discredited Nigerian Barge prosecution that arose from the demise of Enron.
As that earlier post noted, after the Fifth Circuit reversed Brown’s conviction on honest services wire fraud, the DOJ had inexplicably teed up yet another trial of Brown, which was scheduled to begin next week.
Meanwhile, Brown was seeking a dismissal of the case and of his conviction on additional charges of perjury and obstruction of justice. Those latter charges arose from Brown protesting his innocence to the grand jury that indicted Brown and the other Nigerian Barge defendants on the fallacious honest services wire fraud charges.
Sort of wrong to be convicted of perjury and obstruction for saying that you’re innocent of something that is not a crime, don’t you think?
At any rate, earlier in the week, the prosecution in Brown’s case out of the blue requested a continuance of the September 20 trial setting. The government’s dubious grounds for the continuance were that Brown might win an appeal on his perjury and obstruction charges, so the District Court should wait on the outcome of that appeal so that all of the charges could be tried at one time.
After seven years, that’s a flimsy reason for a continuance, but at least it’s colorable.
However, as Brown’s opposition to the government’s motion reveals, the reason was also false. The real reason that the government was seeking a continuance was that the prosecution had no intention of prosecuting the case against Brown. In short, the government was only seeking to extend Brown’s ordeal:
In sum, the government’s motion for an indefinite continuance reveals that the government has put the Court and Brown through months of stress, anxiety and litigation over three counts it has not even intended to bring to trial. Despite being only a few days from the third trial setting, our trial preparation has disclosed that the government has not contacted any of the persons who have knowledge of the transaction and who it presented in its case-in-chief in 2004. Indeed, it has not even contacted its “star witness,” Ben Glisan, from Brown I “in years.” Nor has it contacted its lone Merrill Lynch witness, Tina Trinkle, about Brown’s trial. Trinkle was the only individual whose testimony even alleged that Brown might have participated in one internal Merrill call regarding the government’s purported criminal conspiracy.
The government’s failure even to notify its key witnesses of the long-scheduled September 20 trial suggests that the government has been using the court to run an outrageous “bluff”-demonstrating the Department’s continuing disingenuous gamesmanship with Brown’s life and liberty. No continuance shall be granted for “lack of diligent preparation or failure to obtain available witnesses on the part of the attorney for the Government.” . . . This Court must now enforce Brown’s right to a trial as scheduled and deny the government’s motion.
Not surprisingly, U.S. District Judge denied the government’s request for a continuance on Wednesday. The government then filed its motion to dismiss the case entirely shortly thereafter, which Judge Werlein immediately granted.
So, what was the government’s purpose in putting James Brown and his family through the wringer over the past seven years?
Ayn Rand’s observation about socialists who use state power to further their supposedly altruistic goals seems particularly apt:
“[T]he truth about their souls is worse than the obscene excuse you have allowed them, the excuse that the end justifies the means and that the horrors they practice are means to nobler ends.”
“The truth is that those horrors are their ends.”
Update: Larry Ribstein, who also has been appalled at the government’s conduct of this and related criminal cases for years, provides his customary keen insight to these latest developments.