By Dan Christensen, FloridaBulldog.org
For the second time this summer, Miami federal prosecutors stand accused of spying on the defense – this time in the case of an alleged $28-million, international sweepstakes fraud.
As described in court papers, the “invasion of the defense camp” appears to have begun in February when one of four defendants in the case cut a secret plea deal with the U.S. Attorney’s Office and began working undercover.
The informant, John Leon of Wilton Manors, participated in defense team strategy sessions for three months as a government “mole,” obtaining documents and listening to privileged discussions about witnesses and other sensitive defense matters and reporting back to the government, the documents say.
The fallout: defense accusations that the case has been irretrievably “tainted” due to constitutional violations of the attorney-client privilege.
“For a period exceeding two months, Leon, acting as a government informant with the government’s acquiescence, invaded the defense camp where he learned critical defense strategies by actively participating in numerous meetings, after already accepting a government plea and agreeing to cooperate,” say court papers filed by attorneys Marc Nurik of West Palm Beach, J. David Bogenschutz of Fort Lauderdale and Marshall Dore Louis of Miami.
Assistant U.S. Attorney H. Ron Davidson, while acknowledging that defendant Leon became a covert “government cooperator,” told U.S. District Judge Darrin P. Gayles in a July 8 pleading that Leon “never shared privileged information with the United States, the United States never asked for privileged information and the defendant’s motion lacks any merit.”
The judge, however, has sided so far with the defense. On Aug. 3, after an initial hearing, he ordered the government to turn over to the defense all “rough notes” of interviews of Leon by Internal Revenue Service agents who helped build the government’s fraud case. The defense had sought the agents’ notes, contending the government had “carefully sanitized” memos of interviews with Leon produced to the defense.
‘The ends of justice’
The same day, Judge Gayles also granted a continuance in the case and reset the trial date for Nov. 28, saying “the ends of justice outweigh the interests” of a speedy trial.
What’s expected to follow this fall is a full-blown hearing on whether felony charges of mail fraud, money laundering and conspiracy should be dismissed against the remaining defendants – Matthew Pisoni, Marcus Pradel and Victor Ramirez – due to government misconduct.
“An evidentiary hearing is exactly what is required to determine how to resolve these blatant [constitutional] violations, and the appropriate sanction for these pervasive violations,” attorneys Nurik and Bogenschutz said in court papers.
U.S. Attorney Wifredo A. Ferrer’s office declined Florida Bulldog’s request for comment.
In June, prominent Miami defense lawyer Howard Srebnick accused both the FBI and the U.S. Attorney’s Office of spying on the defense in a $55- million Medicare fraud case by illegally and obtaining copies of confidential defense documents. More specifically, it was alleged a government-approved copying service had surreptitiously provided agents with duplicates of documents culled by the defense team from 220 boxes of evidentiary records in preparation for trial.
The Florida Bulldog reported last month that those allegations of government misconduct dissipated weeks later when the U.S. Attorney’s Office abruptly gave all three defendants generous plea deals involving no prison time. The defendants had each faced lengthy jail terms if convicted.
The copying service, Imaging Universe, was fired. The U.S. Attorney’s Office conducted an internal inquiry, but declined to make public its findings. Srebnick withdrew his motion with the accusations after securing a deal for his client. Consequently, the judge never ruled on the merits.
The alleged scam
Pisoni was president of the now-defunct Mail Tree, Michael McKay, Spin Mail and other Florida companies that the government contends were used in the fraud. Pradel, Ramirez and Leon worked with him in the alleged scam.
The four were indicted together on May 7, 2015 for participating in a sweepstakes scheme that began in 2006. The indictment says victims were falsely notified by mail that they’d won a substantial prize, but needed to pay a fee of up to $50 to redeem their winnings.
Authorities have said the defendants collected more than $25 million from hundreds of thousands of victims in the U.S. and abroad, using shell companies and international bank accounts to lauder their loot.
Even before they were indicted, the four had learned they were under investigation “and circled the wagons in a Joint Defense Agreement,” the government said. A JDA is a contract in which defendants extend the attorney-client relationship among them to facilitate the sharing of privileged information.
But last winter, unknown to his fellow defendants, Leon and his Fort Lauderdale attorney, Omar F. Guerra Johansson, began plea negotiations that resulted in his Feb. 17 plea agreement with the government.
“His cooperation was kept covert because Leon was cooperating with the government against a non-charged defendant,” prosecutor Davidson wrote. “Moreover, the government specifically instructed Leon not to share privileged information.”
Leon’s plea deal became public on April 20 when the indictment against him was dropped and a single new conspiracy charge was filed. He’s now facing a maximum penalty of five years’ imprisonment. Before, like the others, he faced a maximum of 80 years in prison.