Maryland U.S. Attorney's Office contends that prosecutors properly handled faked drug-dog certification

The attorney for Indiana real-estate investor Samantha Banks, whose $122,640 in cash was seized by authorities at Baltimore-Washington International Airport last year, in July argued that federal prosecutors knowingly passed off in litigation a faked drug-dog certification produced by the Maryland Transportation Authority Police (MTAP) to support their effort to keep Banks' money as illicit proceeds, conduct that he characterized as violating the prosecutors' duty of candor to the court. But, in an Oct. 6 filing, the chief of the criminal division of the Maryland U.S. Attorney's Office, Barbara Sale, responded to the accusations with "a resounding NO" (emphasis in the original).

Sale wrote that "saying it does not make it so," adding that "repeated and sanctimonious references to violations of the duty of candor do not add up to proof of any kind that the Assistant United States Attorneys"—Stefan Cassella and Evan Shea—"acted with any motive to obscure or deceive."

Instead, Sale argued, "what there is, at most, is imperfect recordkeeping by MTAP, a clumsy attempt to supply a missing document for litigation, a prompt revelation that the document was not an authentic original certificate, and a debate as to the meaning of the word 'reproduction.'"

While "all manner of chicanery to pass off the document as authentic" has been ascribed to Cassella and Shea, Sale continues, "there is not a shred of evidence" that they "acted with any intent to deceive opposing counsel or anyone, let alone to undermine the integrity of the process." The accusations, she implies, are an attempt to distract the court from "a decision on the merits" of the case, which "is precisely what Mrs. Banks seeks to avoid," adding that the case "should not be sidetracked by scurrilous and unfounded allegations."

Sale's filing, which relies on affidavits by Cassella, Shea, and Jennifer Stubbs, a paralegal for the prosecutors, also states that "it is undisputed that Falco and his handler, Corporal [Joseph] Lambert, were in fact certified at the time of the search that led to this case." But in a September filing, Banks' attorney, C. Justin Brown, disputed this contention, writing that he "believes that this is not necessarily the case" because, "among other reasons, MTAP records provided by the Government indicate that the K-9 team had not trained an adequate number of hours to have been certified on August 16, 2013," when Falco alerted on Banks' cash.

What's more, a May 8 email from Stubbs to Cassella attached to Stubbs' affidavit states that MTAP knows "for sure" that "Falco was in fact certified and underwent the initial basic training" (emphasis in the original), but MTAP does "not have the records to back this up, aside from the bogus certificate."

That Stubbs referred to the certificate as "bogus" is noteworthy, since Sale's filing contends that "at no time did" Cassella or Shea "ever believe or have reason to believe that [the certificate] was anything other than a recreation of a valid training certificate that had been lost." Stubbs' use of the word "bogus" would arguably be a basis to suspect something was amiss, along with the facts, contained in the same email, that "MTAP had lost the certificate and score card that goes along with it," so "they basically panicked and created this new certificate which likely does not have the correct certification date on it."

Cassella contended in an April 15 letter to Brown that the document is a "reproduction of the original certificate," a description that Brown has called "misleading." Cassella's affidavit attached to Sale's Oct. 6 filing continues to maintain this: "At no time did I believe or have any reason to believe that the Certificate produced in discovery to Claimant's counsel was anything other than a recreation of a valid training Certificate that had been lost," he wrote.  

Shea's affidavit recounts how he first learned of the problems with the certification, in preparation for a July 9 deposition of Michael McNerney, MTAP’s head K-9 trainer. The day before, during a briefing with the prosecutors, McNerney said "he believed that the K-9 [Falco] was not properly trained and was not reliable," the affidavit states (emphasis in the original), and Shea promptly related to Sale "my concern about relying on the evidence of the dog alert in light of that opinion," but "did not mention the issue with the certificate."

The next day, just before the start of McNerny's deposition, Shea for the first time read Cassella's April 15 letter describing the faked certificate as a "reproduction," and, "reacting on instinct, defended it as adequately disclosing the nature of the document."

The legal wrangling over this issue of prosecutorial integrity will continue, as Brown has yet to respond to Sale's filing. After he does, and possibly after a hearing in open court, U.S. District Judge James Bredar will have the task of sorting through the quagmire of conflicting arguments and evidence and decide a just outcome.

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