Fall.  The colors are changing and the apples are crisp.

This month’s FCPA Professor Apple Award goes to … U.S. District Court Judge Richard Sullivan (S.D.N.Y.).

According to a recent Law360 article (“Judge Mocks US Attorney Bharara’s Press Release”), at a recent Practising Law Institute conference Judge Sullivan “ridiculed” this press release put out by the office of Manhattan U.S. Attorney Preet Bharara in a public corruption case “calling into question the prosecutorial practice of issuing purportedly sensationalist statements about charges prior to a conviction.”  According to the article, Judge Sullivan “derided a supposedly over-the-top statement issued by Bharara’s office announcing bribery and fraud charges against New York State Sen. Malcolm Smith and New York City Council Member Daniel Halloran.”  The article states as follows.

“In the midst of a discussion on the pros and cons of bringing corruption cases during an election cycle, Judge Sullivan produced a copy of the April press release, and to the scattered laughter of attendees, proceeded to read aloud Bharara’s quote verbatim.  ‘Today’s charges demonstrate, once again, that a show-me-the-money culture seems to pervade every level of New York government. The complaint describes an unappetizing smorgasbord of graft and greed involving six officials who together built a corridor of corruption stretching from Queens and the Bronx to Rockland County and all the way up to Albany itself,’ the judge restated in a mocking tone.  ‘That sounds like the theme from Mighty Mouse,’ he said, noting the release is five pages long with five different press contacts listed for reporters. [...] ‘This seems to be designed for tabloid consumption,’ Judge Sullivan said, adding, ‘there should be a question asked that is that appropriate at the preconviction stage.’”

According to the Law360 article, “fellow panel member and deputy U.S. Attorney for the Southern District of New York Richard B. Zabel defended the practice, saying under U.S. Department of Justice guidance, part of the reason to have a press conference or release is to explain to the public what is going on.  ‘The purpose of a quote is to be quoted and draw attention to the case,’ Zabel said. “Laypeople can’t read a complaint.”

The irony of Zabel’s quote of course is that “laypeople” on the grand jury issued the charging document and “laypeople” sit in judgment of the defendants and ultimately determine whether the DOJ has proved the elements of the offense set forth in the charging document.

Back to Judge Sullivan’s comments.

If he was agitated by the DOJ’s statements in the above case, he would have had a field day with the DOJ and FBI’s press releases and statements in connection with the Africa Sting case.  In connection with the case, the FBI issued this release stating that “the ruse played out with all the intrigue of a spy novel.”   In a sophomoric statement, the Assistant Attorney General stated “this is one case where what happened in Vegas doesn’t stay in Vegas.’’

Indeed, Judge Richard Leon commented on the general issue when dismissing the Africa Sting cases.  As noted in this prior post, Judge Leon stated:

“This appears to be the end of a long and sad chapter in the annals of white collar criminal enforcement.  Unlike takedown day in Las Vegas, however, there will be no front page story in the New York Times or the Post for that matter tomorrow reflecting the government’s decision today to move to dismiss the charges against the remaining defendants in this case.  Funny isn’t it what sells newspapers.”

For a prior post highlighting how the DOJ often issues press releases when charging defendants, but often goes silent when those charges result in acquittals or dismissals, see here.

[The FCPA Apple Award recognizes informed, candid, and fresh thought-leadership on the Foreign Corrupt Practices Act or related topics.  There is  no prize, medal or plaque awarded to the FCPA Professor Apple Award recipient.  Just recognition by a leading FCPA website visited by a diverse group of readers around the world. There is no nomination procedure for the Apple Award.  If you  are writing something informed, candid and fresh about the FCPA or related topics, chances are high that I will find your work during my daily searches for FCPA content.]