Article: May 2014 White Collar Litigation Update

Jumping the Gun: Public Statements by U.S. Attorneys That Inappropriately Opine on the Guilt of Charged but Untried Defendants. When United States Attorney’s Offices file criminal charges in significant cases, U.S. Attorneys generally seek to publicize their offices’ work. That publicity usually takes the form of press releases. U.S. Attorneys are supposed to refrain from publicly opining on the guilt of people who have been charged but not convicted. In reality, some U.S. Attorneys play by that rule, and others don’t. But in the absence of a defendant making the extremely difficult showing of prejudicial pretrial publicity, even when U.S. Attorneys ignore federal guidelines and Department of Justice (“DOJ”) policy and opine on an untried defendant’s guilt, the call is “no harm-no foul” and the violation goes unaddressed.

Law and Policy Governing Public Statements by Prosecutors. 28 C.F.R. § 50.2 sets forth guidelines that are supposed to govern public disclosure of information by DOJ personnel. The regulation is premised on the principle that any release of information by prosecutors should balance the rights of accused persons with the public’s interest in the transparency of criminal proceedings.

To that end, section 50.2(b)(3) lists types of information that DOJ officials may publicly disclose—such as basic biographical information, the substance of the allegations contained in the complaint or indictment or other public document, and the circumstances immediately surrounding an arrest. Section 50.2(b)(6) lists categories of statements that prosecutors “should refrain from making” in public statements, including “[a]ny opinion as to the defendant’s guilt.” Likewise, the U.S. Attorney’s Manual (“USAM”), which governs the conduct of U.S. Attorneys and their staff, explicitly directs prosecutors to “refrain from” publicly opining on a defendant’s guilt. USAM § 1-7.550.

While 28 C.F.R. § 50.2 and USAM § 1-7.550 both explicitly tell U.S. Attorneys that they should not publicly offer opinions on an untried defendant’s guilt, neither provides for any penalty if that directive is ignored.

Disparate Compliance with the C.F.R. and USAM’s Guidelines. Comparing various offices’ press releases illustrates the disparity in the degree to which U.S. Attorneys perceive themselves to be constrained in opining publicly on the guilt of untried defendants. The nation’s highest-profile U.S. Attorney’s Office, the Southern District of New York (“S.D.N.Y.”), is the office that most often opines on the guilt of people who have been charged but not convicted. Sometimes, the U.S. Attorney does it without any subtlety at all; other times, the opinion is stated only implicitly. For example, in October, the S.D.N.Y. U.S. Attorney issued a press release in connection with the arrest of a man for allegedly operating Silk Road, a website that purportedly offered drugs and other illegal services. The press release stated: “With his arrest and our subsequent seizures of millions of dollars worth of Silk Road’s [virtual currency], we have sent a clear message to him and everyone else running criminal enterprises of the dark web: we are determined and equipped to hold you to account.” Yet, all that had happened at that point was that a magistrate judge had found probable cause to sign an arrest warrant on a criminal complaint; the government certainly had not obtained any judicial finding that in fact the defendant ran any criminal enterprise, including one of “the dark web,” at all.

On the same day, the same U.S. Attorney issued another press release, which announced recent arrests and charges related to armed robberies. That press release stated: “The perpetrators of violence cannot hide from the law, as the arrests of these defendants show.” In fact, the arrests of the defendants showed merely that they had been charged with being perpetrators of violence, not that they were such villains. The following week, the same U.S. Attorney stated in a press release announcing fraud charges against a provider of services for special needs preschool students: “As today’s arrest makes clear, we will not tolerate individuals who cheat local, state, and federal government under the guise of helping children, and will do everything in our power to hold them accountable.” If one credited the U.S. Attorney’s implicitly stated opinion, then the defendant, who had been not convicted of anything, had already been determined to be one of the referenced despicable individuals who cheated the government under the guise of helping children.

Other U.S. Attorneys are not so prolific but still occasionally ignore the C.F.R. and the USAM. In a recent press release from the Eastern District of New York announcing the arrest of a defendant on fraud charges, the U.S. Attorney stated: “Fredrick Douglas Scott wanted a place in history, but tried to secure that spot with stolen money rather than honest work.” This is the sort of statement that one expects to see after the return of a guilty verdict, not a mere arrest. Similarly, in a press release from the Central District of California announcing arrests of numerous defendants alleged to be participants in a drug conspiracy, the U.S. Attorney said: “The arrests we announce today dismantle that conspiracy and disrupt this threat to public safety.”

Some offices (at least currently) do not editorialize at all, instead simply summarizing charges. Recent press releases from the Northern District of Illinois and the Southern District of Florida reflect such an approach.

Conclusion. The direction in the C.F.R. and USAM could not be more clear: do not publicly opine on a charged defendant’s guilt. But some U.S. Attorneys will continue to ignore the guidelines and attempt to color the public’s view of a charged defendant from the moment he or she is arrested. Unless and until the rules change to provide for some enforcement mechanism short of having to prove a due process violation resulting from prejudicial pretrial publicity, then nothing will change and some U.S. Attorneys will continue to break these rules without suffering any consequences.