202_NAPABA2015CLE

Fishy Justice: The Supreme
Court’s Take(s) On Prosecutorial
Discretion And
Overcriminalization
NAPABA 2015 Annual Convention
Vinoo Varghese
Program Chair & Moderator
Varghese & Associates, P.C.
2 Wall Street
New York, NY 10005
(212) 430-646
www.VargheseLaw.com

Vinoo P. Varghese
• New York Metro Super Lawyer, a NEW YORK LAW JOURNAL Rising Star, a Top
100 Trial Lawyer by THE NATIONAL TRIAL LAWYERS, and a NAPABA Best Under
40
• In 2006, founded Varghese & Associates, P.C.
▫
Represents individuals and companies in all criminal cases including white collar, state
felonies and misdemeanors, appeals, internal corporate investigations, and assetforfeiture
• In May, in the Second Circuit, won a rarely granted retrial against the DOJ &
IRS for a client convicted of criminal tax fraud
▫
Represented Rengan Rajaratnam, hedge fund trader, and Dan Halloran, NYC
Councilman
• In 2013, the NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS heralded
Varghese as a courageous attorney for his stalwart defense of clients, the federal
and state constitutions, and the criminal defense bar at large
• Graduated from Brooklyn Law School, New York University, and Chaminade
High School
▫
Taught for the NYC Law Department’s Trial Advocacy Program, Cardozo Law School’s
Intensive Trial Advocacy Program, and Brooklyn Law’s Business Boot Camp

Sanjeev Bhasker
• Assistant United States Attorney in the Western District of
North Carolina
▫ Previously with SDTX (Laredo, TX) and Cuyahoga County (Cleveland,
Ohio)
• Criminal prosecutor for 9 years, tried over 85 criminal
felony trials, and made over 35 appellate arguments
▫ Inclusive of capital murder, white collar crime, cybercrime, and
organized gang activity
• Has litigated federal trials in WDNC, SDTX, and federal
appeals in the US Court of Appeals for the 5th Circuit
• Assists the Department of Justice through OPDAT with the
training of prosecutors in Mexico
• Licensed to practice in Ohio, Florida, and Illinois
• Graduated from Case Western Reserve University School
of Law and Wabash College

Tejpal Chawla
• Assistant United States Attorney in District of Columbia
▫ Worked throughout the Office and prosecuted hundreds of local
and federal cases
▫ From 2009 to 2011, was the Deputy Chief of the General Crimes
Section where he supervised a team of 35 prosecutors and staff
▫ Presently assigned to the National Security Section, where he
prosecutes terrorism, export control, and national security cases
• Prior to working at the Office, was an associate at Crowell &
Moring LLP
• Served pro bono as Counsel to the Sikh American Legal
Defense and Education Fund
▫ Advocated for the Sikh community, and worked on post-9/11 hate
crime issues, and complaints of biased policing and
discrimination
• Tejpal received his BA in Political Science from Boston
University, magna cum laude, and his JD with Honors from
the George Washington University Law School

Jessie K. Liu
• Co-chair of White Collar Defense and Investigations
Practice at Jenner & Block LLP
▫ Focus on advising clients facing government investigations or
enforcement actions, with a particular emphasis on the Foreign
Corrupt Practices Act and the False Claims Act
• Assistant United States Attorney for the District of
Columbia
▫ Deputy chief of staff in the National Security Division of the
Department of Justice
▫ Counsel to the deputy attorney general
▫ Deputy assistant attorney general in the Department’s Civil
Rights Division
• Clerked for then-Chief Judge Carolyn Dineen King of the
U.S. Court of Appeals for the Fifth Circuit
• Graduated from Yale Law School and summa cum laude
from Harvard College

Paul S. Padda
• Trial Attorney with the United States Department of
Justice and Assistant United States Attorney in both
the District of Columbia and Nevada
▫ Handled a wide variety of complex civil and criminal matters
• January 2011 – founded Paul S. Padda & Associates,
PLLC as owner and managing attorney
▫ Represents primarily plaintiffs in personal
injury/employment cases and defendants in criminal
matters
• Admitted to practice law in Nevada, California, and
Illinois
• Graduated from University of Chicago (B.A.), Oxford
University (M.St.), University of Illinois (J.D.), and
London School of Economics (LLM)

Introduction
• Prosecutorial Discretion
▫ Supreme Court’s comments in Yates & Bond
• Overcriminalization
▫ Ashcroft Memorandum v. Holder Memorandum
▫ The power of prosecutors
▫ Boston Bomber Friends
• Implications for prosecutors and defense
attorneys

What is Prosecutorial Discretion?
• A prosecutor’s power to choose from the
options available in a criminal case, such as
filing charges, prosecuting, not prosecuting,
plea-bargaining, and recommending a
sentence to the court. [1]
[1]
Garner, Brian A. Black's Law Dictionary. 10th ed. USA: West, 2014. Print.

Bond v. United States, 134 S.Ct. 2077 (2014)
• Background
▫ Woman gets revenge on her husband’s
lover by trying to poison her
▫ The mistress suffered a thumb burn
• Claims and Charges
▫ Violation of the Chemical Weapons
Convention Implementation Act

Supreme Court Opinion
• Chief Justice Roberts
▫ “…a federal offense to poison goldfish”
▫ “…the global need to prevent chemical warfare
does not require the Federal Government to reach
into the kitchen cupboard”
• Justice Alito
▫ “…that the treaty power is limited to agreements
that address matters of legitimate international
concern” [2]
[2]
134 S.Ct. at 2091, 2111

11
Oral Argument Comments
• Justice Alito
▫ Noted that, “a few days ago, he and
his wife had passed out ‘chemical
weapons’ to children — that is,
Halloween chocolate. He said that
‘chocolate is poisonous to dogs,’ and
the treaty bans the use of any
chemical harmful to animals as well
as humans.” [3]
• Justice Breyer commented, “There was
chocolate all over the place,” and U.S.
Solicitor General Verrilli, responded, “this
is serious business.”
[3]
Denniston, Lyle. "Argument Recap: A Tense Hour at the Court." SCOTUSblog. N.p., 05 Nov. 2013. Web. 13 Sept. 2015.

18 U.S. Code § 1519
• Destruction, alteration, or falsification of
records in Federal investigations and
bankruptcy
▫
Whoever knowingly alters, destroys, mutilates,
conceals, covers up, falsifies, or makes a false
entry in any record, document, or tangible object
with the intent to impede, obstruct, or influence
the investigation or proper administration of any
matter within the jurisdiction of any department
or agency of the United States or any case filed
under title 11, or in relation to or contemplation
of any such matter or case, shall be fined under
this title, imprisoned not more than 20 years, or
both.
• Added Pub. L. 107–204, title VIII, § 802(a), July
30, 2002, 116 Stat. 800.
• A provision of the Sarbanes–Oxley Act of
2002, a law designed to protect investors and
restore trust in financial markets following the
collapse of Enron Corporation

Yates v. United States,
135 S.Ct. 1074 (2015)
• Background
▫ Use of a federal law punishing corporate record destruction
against a fisherman who dumped fish off his boat
• Claims and Charges
▫ Violation of the 18 U.S.C. §1519
▫ Knowingly disposing of undersized fish in order to prevent
government from taking lawful custody and control of them
▫ Violating Sarbanes–Oxley Act (SOX) by destroying or
concealing a tangible object with the intent to impede,
obstruct, or influence government's investigation into
harvesting undersized grouper

Supreme Court Opinion
• Justice Ginsburg’s Plurality Opinion
▫ Use of traditional tools of statutory interpretation to
examine markers of congressional intent within the
Sarbanes–Oxley Act and § 1519 itself thus call for
rejection of an aggressive interpretation of “tangible
object.”
• Justice Alito’s Concurring Opinion
▫ And while many of § 1519's verbs—“alters, destroys,
mutilates, conceals, covers up, falsifies, or makes a
false entry in”—could apply to far-flung nouns such as
salamanders or sand dunes, the term “makes a false
entry in” makes no sense outside of filekeeping.
Finally, § 1519's title—“Destruction, alteration, or
falsification of records in Federal investigations and
bankruptcy”—also points toward filekeeping rather
than fish. [4]
[4]
135 S.Ct. at 1077, 1078

Supreme Court Opinion
• Justice Kagan‘s Dissent
▫
“A fish is, of course, a discrete thing that possesses
physical form. See generally Dr. Seuss, One Fish Two
Fish Red Fish Blue Fish (1960). So the ordinary meaning
of the term ‘tangible object’ in § 1519, as no one here
disputes, covers fish (including too-small red grouper).”
▫ “Most district judges,as Congress knows, will recognize
differences between such cases and prosecutions like this
one… and will try to make the punishment fit the crime.”
▫ “…§ 1519 is a bad law—too broad and undifferentiated,
with too-high maximum penalties, which give
prosecutors too much leverage and sentencers too
much discretion.”
▫ “In those ways, § 1519 is unfortunately not an
outlier, but an emblem of a deeper pathology in
the federal criminal code.” [5]
[5]
135 S.Ct. 1074 (2015)

Oral Argument Comments
16
• Justice Scalia
▫ “What kind of sensible prosecutor does that?
Who do you have who exercises prosecutorial
discretion? Is it the same guy who brought
Bond, last Term?”
▫ “‘What kind of mad prosecutor’ would use that
law in a case like this one?”
• Assistant US Solicitor General Martinez weakly
responded that the prosecutors had not asked for a
twenty-year sentence against the fisherman
• Chief Justice John G. Roberts, Jr.
▫ “You make him sound like a mob boss”
• Justice Breyer
▫ Asked about kicking a small ember away to try
to conceal a forbidden campfire in a public
park [6]
[6]
Denniston, Lyle. "Argument Analysis: Building to a Scalia Crescendo." SCOTUSblog. N.p., 05 Nov. 2014. Web. 13 Sept. 2015.

Overcriminalization
• A consequence of our “nation's addiction to criminalization backlogs
our judiciary, overflows our prisons, and forces innocent individuals
to plead guilty not because they actually are, but because exercising
their constitutional right to a trial is prohibitively expensive and too
much of a risk” [7]
▫
Most frequently occurs through:
• Ambiguous criminalization of conduct without meaningful definition or
limitation;
• Enacting criminal statutes lacking meaningful mens rea requirements;
• Imposing vicarious liability with insufficient evidence of personal
awareness or neglect;
• Expanding criminal law into economic activity and regulatory and civil
enforcement areas;
• Creating mandatory minimum sentences un-related to the wrongfulness
or harm of the underlying crime;
• Federalizing crimes traditionally reserved for state jurisdiction; and
• Adopting duplicative and overlapping statutes.
• https://www.youtube.com/watch?v=fMdw78HkNJc#action=share
[7]
"Overcriminalization." NACDL. National Association of Criminal Defense Lawyers, n.d. Web.

Congressional Task Force on
Overcriminalization
New criminal offenses are being created without being
considered by the lawmakers on the Judiciary Committee
who have valuable expertise in drafting and resolving
potential conflicts with exiting criminal law…the
Committee would be given the opportunity to seek a
sequential referral over any measure that criminalizes new
conduct.

Overcriminalization occurs when federal policymakers adopt
vague, overbroad, or duplicative statutes; enact criminal
statutes lacking meaningful mens rea (criminal intent)
requirements; federalize crimes traditionally reserved for state
jurisdiction; expand criminal law into areas more appropriately
dealt with by civil enforcement; and create penalties unrelated to
the wrongfulness or harm of the underlying crime.

Ashcroft
Memorandum

It is the policy of the Department of Justice that, in all federal criminal cases,
federal prosecutors must charge and pursue the most serious, readily
provable offense or offenses that are supported by the facts of the case, except
as authorized by an Assistant Attorney General, United States Attorney, or
designated supervisory attorney in the limited circumstances described below. The
most serious offense or offenses are those that generate the most
substantial sentence under the Sentencing Guidelines, unless a mandatory
minimum sentence or count requiring a consecutive sentence would generate a
longer sentence. A charge is not “readily provable” if the prosecutor has a good faith
doubt, for legal or evidentiary reasons, as to the Government’s ability readily to
prove a charge at trial. Thus, charges should not be filed simply to exert leverage to
induce a plea.
22

23
Holder
Memorandum

Moreover, in accordance with long-standing principle, a federal prosecutor should
ordinarily charge "the most serious offense that is consistent with the
nature of the defendant's conduct, and that is likely to result in a
sustainable conviction" [USAM 9-27.300]. This determination, however,
must always be made in the context of "an individualized assessment of
the extent to which particular charges fit the specific circumstances of the case, are
consistent with the purpose of the Federal criminal code, and maximize the impact
of Federal resources on crime" [USAM 9-27.300]. In all cases, the charges should
fairly represent the defendant's criminal conduct, and due consideration should be
given to the defendant's substantial assistance in an investigation or prosecution. As
a general matter, the decision whether to seek a statutory sentencing enhancement
should be guided by these same principles.

The Power of Prosecutors
• “The USA is invested by
statute and delegation from the
Attorney General with the
broadest discretion in the
exercise of the authority
necessary to perform the
statutory duty to prosecute for
all offenses against the United
States (28 U.S.C. § 547).” [8]
[8]
"Title 9: 9-2.000 Authority Of The U.S. Attorney In Criminal Division Matters/Prior Approvals." The Offices of the United States Attorneys.
United States Department of Justice, n.d. Web.

United States v. Kadyrbayev, et al
13 cr 10238 (D. Mass.)
• Background
▫ Friends (Tazhayakov and Kadyrbayev) of Boston
Marathon bomber brothers (Tsarnaevs) removed
bombers’ laptop and backpack from dorm
• Contained manipulated fireworks and thumb drive
▫ For impeding the investigation into the attack
▫ No evidence that friends had prior knowledge of
bombing
▫ “Could’ve saved the life of Officer Sean Collier”

Dispositions
• Guilty
▫ Tazhayakov: sentenced to 3.5
years in prison for obstructing
of justice and conspiring to
obstruct justice by hindering
the investigation
• Acquitted of laptop counts
• Convicted of backpack counts
▫ Kadybayev: sentenced to 6
years after pleading guilty to
obstructing the FBI
investigation
• Suggested removing Tsarnaev’s
backpack
Boston Globe 2013-05-01

Prosecuting with 18 U.S.C. § 1519
• Consider:
▫ Judge Douglas P. Woodlock said, “anyone confronted with the
information unfolding in real time would have understood the
seriousness of this, and how important it would have been to
have all the information available. There’s a moral obligation
to do that, and the failure to do that was indicative of an
intent to commit a very serious crime.” [9]
▫ The advantage of anticipatory obstruction of justice charges
under 18 U.S.C. § 1519
• Requires no proof of which specific federal proceeding a
defendant sought to obstruct [10]
[9]
Valencia, Milton J. "Tsarnaev Friend Sentenced to Six Years in Prison." BostonGlobe.com. N.p., 2 June 2015. Web. 13 Sept.
2015.
[10]
"Top 10 Compliance Trends For The New Year." Law360. N.p., 1 Jan. 2014. Web.

Implications for Prosecutors and
Defense Attorneys
• “The United States Attorney is the representative not of an
ordinary party to a controversy, but of a sovereignty whose
obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done. As such, he is in a peculiar and very
definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor-indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to
strike foul ones. It is as much his duty to refrain from
improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about
a just one.” [11]
– Justice George Sutherland
[11]
295 U.S. 78, 88 (1935).