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771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** UNITED STATES OF AMERICA, v. LAUREN STEVENS, Defendant.
Case No.: RWT 10cr0694
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
771 F. Supp. 2d 556; 2011 U.S. Dist. LEXIS 30107
March 23, 2011, Decided

COUNSEL:
[**1] For Lauren Stevens, Defendant (1):
filed multiple pretrial motions, most of which will be Brien T O Connor, Ropes and Gray LLP, Boston, MA; Colleen A Conry, Samantha Barrett Badlam, Ropes and Gray LLP, Washington, DC; Michelle L Levin, Steptoe BACKGROUND
and Johnson LLP, New York, NY; Reid H Weingarten, On October 9, 2002, the FDA sent a letter to GSK Robert Ayers, William Hassler, Steptoe and Johnson LLP, stating that the FDA had recently received information indicating that GSK had possibly promoted Wellbutrin for weight loss, a use not approved by the FDA. Indictment at For USA, Plaintiff: Adrienne Elise Fowler, Patrick Glenn ¶ 3. The FDA asked GSK to provide it with materials Jasperse, United States Department of Justice, Office of related to Wellbutrin promotional programs sponsored by Consumer Litigation, Washington, DC; Cynthia A GSK, including copies of all slides, videos, handouts, and Young, Office of the United States Attorney, District of other materials presented or distributed at any GSK pro- Massachusetts, Boston, MA; Sara Miron Bloom, Office of gram or activity related to Wellbutrin. Id. Stevens was "in charge of" GSK's "response to the FDA's inquiry and investigation" and "led a team of lawyers and paralegals JUDGES: Roger W. Titus, United States District Judge.
who gathered documents and information." Id. at ¶ 4.
OPINION BY: Roger W. Titus
The United States alleges that Stevens obstructed the FDA's investigation by withholding and concealing documents and other information about GSK's promo- tional [**3] activities for Wellbutrin, including for un- [*559] MEMORANDUM OPINION
approved uses, while representing to the FDA that she had completed her response to its inquiry, and that Stevens On November 8, 2010, a grand jury for the United falsified and altered documents in order to impede the States District Court for the District of Maryland returned FDA's investigation of GSK. Id. at Cts. I & II. In partic- a six-Count 1ndictment against Lauren Stevens ("Ste- ular, the Government alleges Stevens withheld slide sets vens"), former Vice President and Associate General used by speakers at GSK promotional events that pro- Counsel of GlaxoSmithKline ("GSK"). The indictment moted off-label use of Wellbutrin and withheld infor- charged Stevens with one count of obstruction of a pro- mation regarding compensation received by attendees at ceeding in violation of 18 U.S.C. § 1512, one count of promotional events. Id. at ¶¶ 20, 22, 27, 32, 33, 36. The falsification and concealment of documents in violation of Government alleges that Stevens signed and sent to the 18 U.S.C. § 1519, and four counts of making a false FDA six letters containing materially false statements statement in violation [**2] of 18 U.S.C. § 1001. The regarding GSK's promotion of Wellbutrin for off-label charges arose out of Stevens' response to an inquiry by the United States Food and Drug Administration ("FDA") into GSK's alleged off-label promotion of the an- In responding to the FDA's inquiry, Stevens was as- ti-depressant drug Wellbutrin SR ("Wellbutrin"). A jury sisted by GSK in-house counsel and outside counsel from trial is scheduled to begin April 5, 2011. The parties have the law firm of King & Spalding. Stevens' Opposition to 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** United States' Motion to Preclude Advice of Counsel 18 U.S.C. § 1519 is a general [**6] intent crime, and Defense to 18 U.S.C. § 1519, ECF No. 56, at 2. Stevens' therefore Stevens' good faith reliance on advice of counsel primary defense to the charges in the indictment is that is irrelevant to a determination of her guilt on Count 2. she relied in good faith on the advice of counsel in re- Whether a conviction under § 1519 requires proof sponding to the FDA's inquiry, and that such reliance that a defendant acted with the specific intent to violate negated the requisite intent to obstruct [**4] the FDA's the law is a question of statutory construction. Staples v. investigation or to make false statements. Id. United States, 511 U.S. 600, 604, 114 S. Ct. 1793, 128 L. The Government filed two pretrial motions. The first Ed. 2d 608 (1994). A close reading of the statutory lan- seeks to preclude Stevens from asserting good faith reli- guage reveals that a conviction under § 1519 can only be ance on the advice of counsel as a defense to Count 2. The premised on conduct that was intentional or wilfull. Government argues that good faith reliance on the advice of counsel is not a defense to Count 2 because 18 U.S.C. § 1519 is a general intent crime, and good faith reliance on Whoever knowingly alters, destroys, advice of counsel is only a defense to specific intent mutilates, conceals, covers up, falsifies, or crimes. ECF [*560] No. 19 at 6-12. The Government also moved in limine to exclude evidence regarding the ment, or tangible object with the intent to opinions of other in-house and outside counsel that were impede, obstruct, or influence the inves- not expressed to Stevens at the time of GSK's response to tigation or proper administration of any the FDA's inquiry, regarding whether they viewed GSK's matter within the jurisdiction of any de- responses to be appropriate and not misleading. ECF No. partment or agency of the United States or any case filed under title 11, or in relation Stevens filed eight pretrial motions. Stevens moved to or contemplation of any such matter or to dismiss Count 2 for multiplicity, for failure to state an case, shall be fined under this title, im- offense, and for unconstitutional vagueness. ECF Nos. 20, prisoned not more than 20 years, or both. 22, 39. She also moved for disclosure by the Government of the identities of all attorney witnesses the Government intends to identify as her co-conspirators in the obstruc- tion of the FDA investigation. ECF No. 48. Stevens The Supreme Court's decision in Arthur Andersen moved in limine to [**5] exclude evidence outside the guides this Court's interpretation of § 1519. In Arthur scope of the allegations contained in the indictment, and Andersen LLP v. United States, the Supreme Court inter- filed a Motion for a Bill of Particulars, a Motion for Dis- preted the language [**7] of 18 U.S.C. § 1512(b)(2)(A), closure of the Government's Testimony to the Grand Jury, a similar obstruction statute, which provides, in relevant and a Motion to Compel Discovery and Disclosure of Exculpatory Information. ECF Nos. 23, 25, 38, 47. On March 17, 2011, a hearing was held and the Court "Whoever knowingly uses intimidation began to hear argument on the parties' pretrial motions. or physical force, threatens, or corruptly persuades another person, or attempts to ANALYSIS
toward another person, with intent to . . . I. Good Faith Reliance on the Advice of Counsel Ne-
cause or induce any person to . . . [*561] gates the Specific Intent Required to Violate 18 U.S.C.
withhold testimony, or withhold a record, § 1519.
document, or other object, from an official proceeding [or] alter, destroy, mutilate, or Good faith reliance on the advice of counsel is only conceal an object with intent to impair the relevant to specific intent crimes because such reliance object's integrity or availability for use in demonstrates a defendant's lack of the requisite intent to an official proceeding . . . shall be fined violate the law. United States v. Miller, 658 F.2d 235, 237 (4th Cir. 1981) ("The reliance defense . . . is designed to refute the government's proof that the defendant intended to commit the offense."), United States v. Polytarides, 584 F.2d 1350, 1353 (4th Cir. 1978) ("The basis for the de-fense of action taken on the advice of counsel is that, in The Court held that the most natural reading of the relying on counsel's advice, defendant lacked the requisite statute was one in which the word "knowingly" modifies intent to violate the law."). The United States argues that "corruptly persuades." Id. The Court explained 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** with consciousness of their wrongdoing. At least three of "[The statute] provides the mens our sister courts have also held that Section 1519 is a specific intent crime to which the advice of counsel de- acts--'uses intimidation or physical force, fense is applicable. See United States [**10] v. Moyer, threatens, or corruptly persuades.' We have 726 F. Supp. 2d 498, 506, 509-10 (M.D. Pa. 2010), United recognized with regard to similar statutory States v. Kun Yun Jho, 465 F. Supp. 2d 618, 637 n.9 (E.D. language that the mens rea at least applies Tex. 2006), rev'd on other grounds by 534 F.3d 398 (5th to the acts that immediately follow, if not Cir. 2008), United States v. Velasco, No. 8:05-CR-496, 2006 U.S. Dist. LEXIS 39218, 2006 WL 1679586 at *4 [*562] Because the Court concludes that 18 U.S.C. § 1519 is a specific intent crime, proof of Stevens' good The Supreme Court held that one could not "know- faith reliance on the advice of counsel would negate her ingly [**8] . . . corruptly persuad[e]" another person wrongful intent on that count. The Government conceded with intent to cause that person to withhold documents at oral argument that Stevens was entitled to assert the from, or alter documents for use in, an official proceeding advice of counsel defense with respect to Counts 1 and without being "conscious of [his] wrongdoing." Andersen, 3-6, charging her with violations of 18 U.S.C. §§ 1001 and 544 U.S. at 705-706. The Court stated that "limiting 1512, both specific intent crimes. Accordingly, the United criminality to persuaders conscious of their wrongdoing States' Motion to Preclude the Advice of Counsel Defense sensibly allows § 1512(b) to reach only those with the level of culpability usually required to impose criminal II. 18 U.S.C. § 1519 is Not Unconstitutionally Vague.
As in Arthur Andersen, the most natural, grammatical Stevens moves for dismissal of Count 2 on the reading of § 1512 is one in which the word "knowingly" ground that 18 U.S.C. § 1519 is unconstitutionally vague. modifies "with intent to impede, obstruct, or influence." Stevens argues that under the Government's interpretation The mens rea of 1519 is not just "knowingly"--meaning of the statute--which would allow for conviction under 18 "with awareness, understanding, or consciousness"--as U.S.C. § 1519 without proof that defendant acted with the Government suggests. Id. at 705. Rather, the mens rea specific, wrongful intent--Section 1519 criminalizes in- is "knowingly . . . with intent to impede, obstruct, or in- nocent conduct and is [**11] subject to arbitrary and fluence," a mens rea clearly requiring consciousness of discriminatory enforcement. ECF No. 39-1. City of Chi- wrongdoing. One cannot be said to "knowingly . . . alter[], cago v. Morales, 527 U.S. 41, 56, 119 S. Ct. 1849, 144 L. . . . conceal[], cover[] up, falsif[y], or make[] false entry in Ed. 2d 67 (1999) ("Vagueness may invalidate a criminal any record [or] document . . . with intent to impede, ob- law for either of two independent reasons. First, it may struct, or influence" an investigation or administration of a fail to provide the kind of notice that will enable ordinary matter within the jurisdiction of a federal agency unless it people to understand what conduct it prohibits; second it is [**9] that individual's intent to do that which is may authorize and even encourage arbitrary and dis- wrongful. As one of our sister courts has held, though the word "corruptly" is not found in § 1519, the same evil When § 1519 is construed as requiring proof that intent embodied in § 1512 is embodied in § 1519. United defendant acted with specific, wrongful intent, it is not States v. Moyer, 726 F. Supp. 2d 498, 506 (M.D. Pa. impermissibly vague. See United States v. Moyer, 726 F. 2010). The language "with intent to impede, obstruct, or Supp. 2d 498, 506, 509-10 ("§ 1519 contains a scienter influence" "imposes upon the § 1519 defendant the same requirement which mitigates any vagueness that remains sinister mentality which 'corruptly' requires of a § in the statute."), United States v. Fumo, 628 F. Supp. 2d 1512(b)(2) defendant." Id. As with 18 U.S.C. § 1512, the 573, 598 (E.D. Pa. 2007) (§ 1519 includes a scienter most reasonable reading of Section 1519 is one which requirement, which "may mitigate a law's vagueness, imposes criminal liability only on those who were con- especially with respect to the adequacy of notice to the scious of the wrongfulness of their actions. To hold oth- complainant that his conduct is proscribed.") United erwise would allow § 1519 to reach inherently innocent States v. Velasco, 2006 U.S. Dist. LEXIS 39218, 2006 WL conduct, such as a lawyer's instruction to his client to 1679586 (M.D. Fla. 2006) (rejecting vagueness challenge withhold documents the lawyer in good faith believes are to § 1519 because statute "has a specific scienter re- quirement that requires the Government to prove that Any other interpretation of § 1519 would ignore the Defendants acted knowingly and willfully in violation of admonition of the Supreme Court in Arthur Andersen that [**12] the Act.") Stevens concedes as much in her motion criminal liability ordinarily may only be imposed on those to dismiss Count 2. ECF No. 39-1 at 6. ("The statute itself 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** . . . states that to be convicted a defendant must act with requires proof that there was a pending or foreseeable the 'intent to impede, obstruct or influence' the handling of official federal proceeding, while conviction under § 1519 a matter. If such intent is interpreted to mean a specific, requires no proof that offense conduct was done with wrongful intent, then no constitutional problem arises.") intent to impair an object's integrity or availability for use in an official proceeding. Rather, a conviction under § When construed as requiring proof of a specific intent 1519 can be premised on alteration or destruction of a to impede, obstruct, or influence a federal matter, § 1519 document or object "with the intent to impede, obstruct, or provides sufficient notice of what conduct is prohibited, influence the investigation or proper administration of and is not subject to arbitrary or discriminatory enforce- any matter within the jurisdiction of any department or ment. Accordingly, Section 1519 is not unconstitutionally agency of the United States or any case filed under title vague, and Stevens' motion shall be denied. 11, or in relation to or contemplation of any such matter or case . . . " 18 U.S.C. § 1519 (emphasis added). III. Counts 1 and 2 are Not Multiplicitous.
Because 18 U.S.C. §§ 1512 [**15] and 1519 each Stevens argues that Count 2 must be dismissed be- require proof of an element that the other does not, Counts cause it is multiplicitous of Count 1, and therefore violates 1 and 2 of the indictment are not multiplicitous, and Ste- the Double Jeopardy Clause. Because Count 2 and Count 1 each require proof of an element that the other does not, IV. Count 2 Does Not Fail to State an Offense.
Two counts are not multiplicitous if each count "re- Stevens argues that Count 2 must be dismissed for quires proof of a fact which the other does not." United failure to state an offense because the specific facts al- States v. Blockburger, 284 U.S. 299, 304, 52 S. Ct. 180, 76 leged in the indictment fall beyond 18 U.S.C. § 1519's L. Ed. 306 (1932). The exclusive focus of the Blockburger reach. Specifically, Stevens argues that by § 1519 only test is on the elements of the [**13] offenses charged. proscribes the destruction, alteration, or falsification of Iannelli v. United States, 420 U.S. 770, 786 n.17, 95 S. Ct. preexisting documents, but does not proscribe the writing 1284, 43 L. Ed. 2d 616 ("As Blockburger and other deci- of letters containing false information, which is the factual sions applying its principle reveal . . . the Court's appli- cation of the test focuses on the statutory elements of the [*563] offense.") If each offense requires proof of a No federal court has endorsed Stevens' argument that different element, the "particular facts offered to convict" a document must be pre-existing to be subject to § 1519's the Defendant are irrelevant. United States v. Allen, 13 proscriptions. By contrast, many federal courts have held F.3d 105, 109 n.4 (4th Cir. 1993). that § 1519 applies equally to one who takes a pre-existing document and adds or deletes information from it to make A conviction under 18 U.S.C. § 1519 requires proof it false, and to one who creates a false document from that the defendant actually altered, destroyed, mutilated, whole cloth. See, e.g., United States v. Fontenot, 611 F.3d concealed, covered up, falsified, or made false entry in a 734, 736 (officers' writing of false use of force report was record, document, or object. By contrast, a defendant can conduct proscribed by § 1519); United States v. Hyatt, be convicted under § 1512 if she merely attempted to 369 Fed. App'x. 48, 49-50 (11th Cir. 2010) (affirming § alter, destroy, mutilate, or conceal a record, document or 1519 conviction [**16] for omission of gambling win- other object. 18 U.S.C. § 1512(c)(1) ("Whoever corrupt- nings from tax returns); United States v. Lanham, 617 ly--(a) alters, destroys, mutilates, or conceals a record, F.3d 873, 886-87 (6th Cir. 2010) (affirming § 1519 con- document, or other object, or attempts to do so, with the viction for writing false prison incident reports); United intent to impair the object's integrity or availability for use States v. Jensen, 248 Fed. App'x. 849, 849-50 (10th Cir. in an official proceeding . . . shall be fined under this title 2007) (affirming § 1519 conviction for creating [*564] or imprisoned not more than 20 years, or both.") A con- false report regarding inmate's urinalysis results), United viction under § 1512 can also be premised on conduct that States v. Jackson, 186 Fed. App'x. 736, 738 (9th Cir. "obstructs, influences, or impedes [**14] any official 2006) (affirming § 1519 conviction of federal criminal proceeding, or attempts to do so," even if no document investigator who omitted confession of other federal of- was concealed, altered or destroyed. 18 U.S.C. § ficer from official investigative report). 1512(c)(2). By contrast, conviction under § 1519 requires proof of document alteration, destruction, mutilation, The Eleventh Circuit explicitly rejected the argument concealment, falsification or the making of a false entry in that a document must be preexisting in order to be subject a record, document or tangible object. Thus § 1519 re- to § 1519. In affirming a police officer's conviction for quires proof of an element that § 1512 does not. creating a false report, the Eleventh Circuit reasoned: 18 U.S.C. § 1512 also requires proof of an element that 18 U.S.C. § 1519 does not. A conviction under § 1512 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** support [Defendant's] reading. Alteration, have any legal questions for Ms. Bloom or certainly suggest § 1519 is concerned par- tially with evidence destruction, but it is not solely concerned with destruction or tampering. While [Defendant] created the statement, such an act clearly is covered by the language of the statute. Nothing sug- § 1519 must be already existing at the time fendant can raise, once the defendant has 'ma[de] a false entry' into a 'document,' all the advice of counsel defense. So in other United States v. Hunt, 526 F.3d 739, 744 (11th Cir. 2008) with a crime cannot simply say, Well, my lawyer said it was okay. There are various This Court finds the reasoning of the Eleventh Circuit requirements, including that the purpose in to be sound. Nothing in the plain language of § 1519 getting the advice cannot be to commit a suggests that a document must be pre-existing to be sub- ject to that statute's proscriptions. Accordingly, Stevens' quirement is that the person receiving the motion to dismiss Count 2 for failure to state an offense advice must provide full information, all of V. Dismissal of the Indictment Without Prejudice is
Appropriate Because of the Erroneous and Prejudi-
if the elements of the crime are met, that cial Legal Advice Given to the Grand Jury.
the person knows that they are submitting Stevens moved for disclosure of the Government's a false statement and -- what the advice of presentation to the grand jury, arguing that disclosure was warranted pursuant to Federal Rule of Criminal Proce- dure 6(e)(3)(E)(ii) because the Government may have lieve that they are not committing a crime, failed to properly instruct the grand jury regarding the advice of counsel defense and may have failed to present knowingly submits a false statement -- and critical exculpatory evidence. Id. In response to Stevens' motion, the Government filed both a redacted and an know, would that person know that that's a unredacted opposition. ECF No. 27. In its unredacted opposition, filed [**18] under seal for the Court's in So, that while it can be relevant at trial camera review, the Government conceded that a grand juror had asked a question about the advice of counsel them advice, if you find probable cause for defense, and that a response was given, but the Govern- the elements here that the attorney Lauren ment did not disclose to the Court the nature of that re- sponse. United States' Unredacted Opposition to Stevens' making false statements and the elements Motion for Disclosure of Government's Presentation to that Patrick went through, then that's suf- the Grand Jury, ECF No. 27-1. The Court ordered the grand jury transcripts disclosed for the Court's immediate, in camera review, reviewed the transcripts, and disclosed a brief excerpt from the grand jury transcripts to Stevens to allow for further briefing on whether the grand jury was properly instructed on the advice of counsel defense. ECF (Excerpt from Transcript of Grand Jury Proceedings Held The excerpt disclosed by the Court read as follows: on November 8, 2010 in the United States District Court 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** The parties submitted supplemental briefs on the The Fourth Circuit has also acknowledged that the adequacy of this legal instruction. See ECF Nos. 105, 107, good faith reliance on the advice of an expert negates a 116, 118. Stevens argued that dismissal of the indictment defendant's mens rea, and therefore is not an affirmative was warranted because the advice of counsel instruction defense. In United States v. Miller, the Fourth Circuit was incorrect, and there was grave doubt that the decision reversed the defendant's conviction for making a false to indict was free from the substantial influence of the statement in violation of 18 U.S.C. § 1001 after the district improper instruction. ECF No. 118. The Government court failed to give a requested instruction on good faith argued that the grand jury was properly instructed and that reliance on advice of an expert. 658 F.2d 235, 237 (4th even if the instruction was deficient, dismissal of the Cir. 1981). The Fourth Circuit held that "[t]he reliance indictment was neither required nor warranted. ECF No. defense . . . is designed to refute the government's proof that the defendant intended to commit the offense." Id., accord United States v. Painter, 314 F.2d 939, 943 (4th A. Advice of Counsel is Not an Affirmative Defense,
Cir. 1963) ("If in good faith reliance upon legal [**23] but Rather Negates the Wrongful Intent Required to
advice given him by a lawyer to whom he has made full Commit the Crimes Charged.
disclosure of the facts, one engages in a course of conduct later found to be illegal, the trier of fact may in appropri- Though often referred to as the "advice of counsel ate circumstances conclude that the conduct was innocent defense," this label is actually a misnomer. Good faith because the 'guilty mind' was absent."), United States v. reliance on the advice of counsel, when proven, negates Okun, 2009 U.S. Dist. LEXIS 12419, at *19-20 (E.D. Va. the element of wrongful intent of a defendant that is re- quired for a conviction. See United States v. Peterson, 101 F.3d 375, 381 [*566] (5th Cir. 1996) ("A good To the extent that Stevens relied in good faith on the [**21] faith reliance on the advice of counsel is not a advice of counsel in responding to the FDA's inquiries, defense to securities fraud. It is simply a means of such reliance would negate the Government's charge that demonstrating good faith and represents possible evi- she falsified and concealed documents with the intent to dence of an absence of any intent to defraud."); see also impede, obstruct, or influence the FDA's investigation Oakley, Inc. v. Bugaboos, 2010 U.S. Dist. LEXIS 123976, into the marketing of Wellbutrin, as charged in Count 2 of *11-12 (S.D. Cal. Nov. 23, 2010) (just because the "'ad- the indictment. Stevens' good faith reliance on advice of vice of counsel defense' contains the word defense . . . counsel would also negate the wrongful intent required to does not an affirmative defense make.") convict Stevens of making false statements under 18 U.S.C. § 1001, which requires a defendant to act "know- An affirmative defense is "[a] defendant's assertion of ingly and willfully," and of obstructing justice under 18 facts and arguments that, if true, will defeat the plaintiff's U.S.C. § 1512, which requires a defendant to act "know- or prosecution's claim, even if all the allegations in the complaint are true." Black's Law Dictionary 482 (9th. ed. 2009). By contrast, the advice of counsel "defense" ne- Because good faith reliance on the advice of counsel gates the defendant's wrongful intent, and therefore negates the mens rea required for conviction on all counts demonstrates an absence of an element of the of- of the indictment, the Government's [**24] instruction to the grand jury regarding the advice of counsel defense must be closely scrutinized. In the securities fraud context, the Fifth Circuit held that "reliance on counsel's advice is not an affirmative B. The Instruction on Advice of Counsel Given to the
defense" because "it is simply a means of demonstrating Grand Jury was Erroneous and There is Grave Doubt
good faith and represents possible evidence of an absence That The Grand Jury's Decision to Indict Was Free
of any intent to defraud." See United States v. Peterson, from the Substantial Influence of the Erroneous Legal
101 F.3d 375, 381 (5th Cir. 1996), accord Oakley, 2010 Instruction.
U.S. Dist. LEXIS 123976, at *11-12 (good [**22] faith reliance on advice of counsel is not an affirmative defense The grand jury is charged with the dual responsibili- but rather "is relevant to determining whether [defendant] ties of "determin[ing] whether there is probable cause to acted with intent to deceive."), LG Philips LCD Co. v. believe a crime has been committed and [] protecti[ing] Tatung Co., 243 F.R.D. 133, 137 (D. Del. 2007) (quoting citizens against unfounded criminal prosecutions." United Sanden v. Mayo Clinic, 495 F.2d 221, 224 (8th Cir. States v. Calandra, 414 U.S. 338, 343, 94 S. Ct. 613, 38 L. 1974)) (advice of counsel is not a true affirmative defense Ed. 2d 561 (1974). In this way, the grand jury serves as because "[a] defense which 'merely negates some element the "protector of citizens against arbitrary and oppressive of plaintiff's prima facie case is not truly an affirmative 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** The Government is not required to present exculpa- As discussed, supra, good faith reliance on the advice tory information to the grand jury, United States v. Wil- of [**27] counsel negates a defendant's wrongful intent, liams, 504 U.S. 36, 112 S. Ct. 1735, 118 L. Ed. 2d 352 and is therefore highly relevant to the decision to indict. A (1992), nor is it required to anticipate and present all of a proper instruction would have informed the grand jurors defendant's [*567] affirmative defenses to the grand that if Stevens relied in good faith on the advice of jury. United States v. Gardner, 860 F.2d 1391, 1395 (7th counsel, after fully disclosing to counsel all relevant facts, Cir. 1988). However, where a prosecutor's legal instruc- then she would lack the wrongful intent to violate the law tion to the grand jury seriously misstates the applicable and could not be indicted for the crimes charged in the law, the indictment is subject to dismissal if the mis- proposed indictment. For example, the Sand & Siffert statement casts "grave doubt that the [**25] decision to model instruction on the advice of counsel defense states: indict was free from the substantial influence" of the erroneous instruction. United States v. Peralta, 763 F. "You have heard evidence that the de- Supp. 14, 21 (S.D.N.Y. 1991) (citing Bank of Nova Scotia fendant received advice from a lawyer and v. United States, 487 U.S. 250, 256, 108 S. Ct. 2369, 101 ing whether the defendant acted willfully and with knowledge. The mere fact that the In United States v. Peralta, a highly analogous case, defendant may have received legal advice the district court dismissed an indictment after finding does not, in itself, necessarily constitute a that the prosecutor seriously misinstructed the grand jury regarding the elements of constructive possession. Id. at yourselves whether the defendant honestly 19-21. The prosecutor erroneously failed to explain to the and in good faith sought the advice of a grand jury that constructive possession required that the defendant "knowingly ha[ve] the power and the intention whether he fully and honestly laid all the at a given time to exercise dominion and control over the object," in this case a gun and drugs. Id. at 19. Instead, the prosecutor erroneously stated that constructive possession such advice, relying upon it and believing could be shown by mere availability or accessibility, it to be correct. In short you should con- without the required elements of knowledge and intent. Id. at 19-20. The Peralta court held that the prosecutor did not "merely fail to instruct the grand jury on a question of applicable law," but rather, "relied on . . . misleading lawful. If he did so, it is the law that a de- statements on the meaning of constructive possession." Id. fendant cannot be convicted of a crime at 20. This misstatement of law left "grave doubt [**26] which involves willful and unlawful intent, that the decision to indict was free from the substantial even if such advice were an inaccurate influence" of the prosecutor's erroneous instruction. Id. at construction of the law. On the other hand, There can be little doubt that the instruction given the late the law and excuse himself from the grand jury regarding the advice of counsel defense was erroneous. The prosecutors' response to the grand juror's that he followed the advice of his lawyer. question clearly indicated that the advice of counsel de- Whether the defendant acted in good faith fense was not relevant at the charging stage. Mr. Jasperse for the purpose of seeking guidance as to stated "the advice of counsel defense . . . is a defense that a the specific acts in this case, and whether defendant can raise, once the defendant has been he acted substantially in accordance with charged." The second prosecutor, Ms. Bloom, reinforced the advice received, are questions for you the statement that the advice of counsel was irrelevant at the charging stage by stating that "while [the advice of counsel defense] can be relevant at trial . . . if you find probable cause for the elements here that the attorney 1 Sand et al., ¶ 8.04 Instr. 8-4 (emphasis added). Lauren Stevens reasonably knew that she was making The Court has grave doubts as to whether the deci- false statements and the elements that Patrick [Jasperse] sion to indict was free from the substantial influence of went through, then that's sufficient to find probable the improper advice of counsel instruction. Bank of Nova cause." The grand jurors were thus instructed erroneously Scotia, 487 U.S. at 256. A grand juror explicitly asked that the advice of counsel was irrelevant to a determina- about the legal implications of Stevens' reliance on the tion of whether there was probable cause to indict Ste- advice of others in responding to the FDA and whether it was relevant. The grand juror was essentially told that 771 F. Supp. 2d 556, *; 2011 U.S. Dist. LEXIS 30107, ** advice of counsel was not relevant to the decision to in- For the reasons stated on the record at the hearing dict, but rather was an issue to be raised [**29] in de- held before the undersigned on March 17, 2011, and in the accompanying Memorandum Opinion, it is, this 23rd day of March, 2011, by the United States District Court for the The grand juror's question was not just any question, but rather was much akin to asking about an elephant in the room. The grand jury was well aware of the Defend- [*569] ORDERED, that the United States' Motion
ant's role as the leader of a team of lawyers and paralegals to Preclude Advice of Counsel Defense to 18 U.S.C. § (Indictment at ¶ 4), and the question was a natural one that 1519 and for Hearing Regarding Applicability of the arose out of her status. The question went to the heart of Defense to Other Charges [**31] (ECF No. 19) is DE-
the intent required to indict. The incorrect answer either NIED; and it is further
substantially influenced the decision to indict or, at the ORDERED, that Defendant's Motion to Dismiss
very least, creates grave doubt as to that decision. Ac- Count Two of the Indictment for Unconstitutional Multi- cordingly, dismissal of the indictment is appropriate and plicity (ECF No. 20) is DENIED; and it is further
ORDERED, that Defendant's Motion to Preserve
The parties differ as to whether a dismissal should be Her Right to File a Motion for Discovery (ECF No. 21) is with or without prejudice. The Court has carefully re- GRANTED; and it is further
viewed the grand jury transcripts and found no evidence that the prosecutors involved engaged in "willful prose- ORDERED, that Defendant's Motion to Dismiss
cutorial misconduct." United States v. Feurtado, 191 F.3d Count Two of the Indictment for Failure to State an Of- 420, 424 (4th Cir. 1999). This is not a case in which the fense, or, in the Alternative, to Strike Those Portions that Government attempted to affirmatively mislead the grand Fall Outside the Scope of 18 U.S.C. § 1519 or are Un- jury to obtain an indictment--rather it is a case in which supported by Factual Allegations (ECF No. 22) is DE-
prosecutors simply misinstructed the grand jury on the NIED; and it is further
law. However, even in the absence of willful prosecutorial ORDERED, that Defendant's Motion for a Bill of
misconduct, [**30] "a defendant is entitled to dismissal Particulars (ECF No. 23) is DENIED; and it is further
of an indictment . . . where actual prejudice is estab-lished." Id. Under these circumstances, dismissal of the ORDERED, that the United States' Motion in
indictment is necessary to allay the Court's grave doubts Limine Regarding Opinion Testimony (ECF No. 36) is about the grand jury's decision to indict, but dismissal DENIED WITHOUT PREJUDICE to the United
with prejudice is wholly inappropriate. Id. (affirming States' right to make specific objections at trial; and it is district court's dismissal without prejudice where gov- ernment's errors before the grand jury were unintentional, rather than the product of prosecutorial misconduct). ORDERED, that the Defendant's Motion to Dismiss
Accordingly, the indictment shall be dismissed without Count Two of the Indictment for Unconstitutional prejudice to the Government's right to seek Steven's in- Vagueness (ECF No. 39) is DENIED; and it is further
dictment before a different grand jury that is appropriately ORDERED, that the Indictment is DISMISSED
instructed as to the law in conformity with this opinion. WITHOUT PREJUDICE to the right of the United
States to seek another indictment from a different grand jury [**32] that is properly advised in accordance with the accompanying Memorandum Opinion.

Source: http://www.nasabaconvention.org/downloads/DOC_Fri_3a_3.pdf

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