Federal prosecutors have called a private attorney's attempts to convince Maryland U.S. District judge James Bredar to dismiss a federal civil-forfeiture case against $122,640 in alleged drug cash a "sanctimonious," "spurious," "scurrilous," "scorched Earth tactic" that is a "manufactured horror." But the attorney, C. Justin Brown, who has presented to Bredar a compelling factual argument that prosecutors knowingly and intentionally produced a faked drug-dog certification—a document that the government itself described as "bogus" in internal communications—as a central piece of evidence in the case, isn't backing down.
"This is not a case in which the Government unintentionally conveyed incorrect information—and is now accepting responsibility for it," Brown wrote in a brief filed yesterday. "Rather, this shows that the Government believes it is proper to conduct discovery in this manner, and it will continue to do so in the future. Here, the two sides have a fundamental difference of opinion about what is right and what is wrong."
Two prosecutors were involved in the case leading up to Brown's motion for dismissal, filed in July: assistant U.S. attorneys Stefan Cassella and Evan Shea. Since then, a third—Barbara Sale, the longtime chief of the criminal division of the Maryland U.S. Attorney's Office—has been enlisted to defend the discovery misconduct that Brown is claiming.
Sale responded to Brown's dismissal motion in October, arguing that there is "no proof of any kind" that Cassella and Shea "acted with any motive to obscure or deceive," and chalked the dispute up to "imperfect recordkeeping," 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.'"
In yesterday’s filing, though, Brown asserted that "contrary to what the Government argues," the faked certificate "was not a 'reproduction of the original,'" but was "made out of whole cloth, from a home computer, with a date that was most likely incorrect. We do not know if an original ever existed. While the Government may now attempt to frame the meaning of 'reproduction' to match its needs, it is inescapable that, despite numerous warnings, the Government failed to disclose material facts about this document, and as a result misled opposing counsel."
As for intent, Brown argued that "because the Government takes the position that it made no mistakes, it cannot now raise lack of intent as a defense. The attorneys did what they meant to do."
Brown also played up the public-policy implications of the case, pointing out that "forfeiture money has become a lifeblood of law enforcement," and that in forfeiture litigation "there is a vast imbalance of power" in favor of the government, which "is highly motivated to take the money first, and ask questions later." Thus, he continued, "it is critical that the Government plays by the rules" because when it "fails to do so, the harm is magnified."
Brown’s indignation over what he’s encountered during the course of the case is relatively muted in his filing, but still detectable. He argued that the case "raises a public policy concern related to the Government and its interaction with" the Maryland Transportation Authority Police (MTAP), the state agency whose drug-sniffing-dog team alerted to the presence of narcotics in the cash after it was seized at Baltimore Washington International Airport last year, and which produced the team's fake certification. Calling MTAP's conduct "highly concerning," Brown pointed out that "not only were the dogs and handlers improperly trained, but, in the words of the supervisor of the canine unit, their conduct was fraudulent. Rather than express concern about that—and try to correct it—the Government chose to try to minimize it, and even encourage others to do the same."
"Fortunately," Brown continued, "MTAP learned a lesson on its own. Since this case was reported in the media, MTAP has restructured its entire canine unit, and brought in outside personnel to train and certify its teams. They are conducting an internal investigation of what happened with the creation of the narcotics certification. A public good has come of this—and it is a far more important public good than the amount of money at stake in this controversy. This Court can affirm this notion by dismissing the suit."
Cassella recently filed a motion for summary judgment in the case, arguing that the claimant—Brown's client, Indiana real-estate investor Samantha Banks—"has failed to show that she ever had any interest" in the cash, and therefore lacks standing to claim it has hers. Even if he wins that argument, which would allow the government to keep the money, Cassella yesterday asked Bredar to rule on Brown's dismissal motion—something that Brown obviously wants too, but only after a "hearing so that the facts of this case can be more fully explored" through"“cross-examination" of "the key individuals in this episode," he wrote in his filing.