Article on Stein Dismissals for Constitutional Violations from DOJ Forcing Withdrawal of Attorneys Fees

There is a good recent article on the important tax / white collar crime case of United States v. Stein, 541 F.3d 130 (2d Cir. 2008), here. The article is Christopher McNamara, How the Decisions in Favor of the Stein Thirteen Will Affect the Litigation of Corporate Crime and Department of Justice Policies and Expand the Sixth Amendment Right to Counsel, 78 Fordham Law Rev. 933 (2009). The article is available here. The following is from the introduction. Footnotes, except for identfying the author, are omitted.

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HOW THE DECISIONS IN FAVOR OF THE STEIN THIRTEEN WILL AFFECT THE LITIGATION OF CORPORATE CRIME AND DEPARTMENT OF JUSTICE POLICIES AND EXPAND THE SIXTH AMENDMENT RIGHT TO COUNSEL

Christopher McNamara*

The U.S. Court of Appeals for the Second Circuit became the first appellate court in nearly thirty years to uphold the dismissal of criminal indictments for a Sixth Amendment right-to-counsel violation. United States v. Stein is a unique case that intertwines constitutional interpretation, constitutional remedies, white collar crime, and U.S. Department of Justice (DOJ) policy. The immediate effects of the Stein decisions not only reflect the changing attitudes at the DOJ on how to prosecute white collar crime but have simultaneously caused the DOJ to implement such changes. As the Sixth Amendment has developed and augmented, so has the interpretation of remedies when there is a right-tocounsel violation. This Note explores the Stein decisions in light of existing doctrines, and concludes that while certain parts of the decisions are legally sound, other parts—right or wrong—may present direct challenges to existing jurisprudence.

* J.D. Candidate, 2010, Fordham University School of Law. I would like to thank Professor Bruce Green for his insight and valuable contribution to this Note. I would also like to thank my family and friends for their unwavering support throughout this entire process.

INTRODUCTION

But if it is in the government’s interest that every defendant receive the best possible representation, it cannot also be in the government’s interest to leave defendants naked to their enemies.

These were the words used by Dennis G. Jacobs, the Chief Judge for the U.S. Court of Appeals for the Second Circuit, when he handed down the unanimous verdict of a three judge panel on August 28, 2008. In the [*934] dismissal of indictments against thirteen former employees (the Stein Thirteen) of the accounting magnate Klynveld Peat Marwick Goerdeler (KPMG). This Note will discuss the potential consequences that Stein’s holding will have on the Sixth Amendment and the avenues for relief available to criminal defendants whose rights to counsel are violated. As is the case with many constitutional violations, the remedy must fit the violation; in other words, the right must fit the wrong. In the context of the Sixth Amendment right to counsel, courts will look to tailor the remedy to put the defendant in the same situation she would have been absent the interference of the right to counsel. Historically, this has meant anything from dismissing an indictment, to a retrial, to absolutely no remedy whatsoever. This Note will argue that the Stein decisions take an expansive view of when the right to counsel attaches. Additionally, this Note will analyze whether or not the courts also took an expansive view regarding right-to-counsel violations, because the dismissal of a criminal indictment is a very rare remedy for a right-to-counsel violation.

The remedy for a constitutional violation will typically match the right. For example, in a case of double jeopardy, the right is to not be tried again. Hence, the remedy, to not be tried for a second time, matches the right. When illegal evidence is offered in a criminal case, thus violating the defendant’s Fourth Amendment rights, the cure (the exclusion of the tainted evidence) matches the defendant’s right to not have illegal evidence used against her. For criminal defendants, the hope is that a court will dismiss an indictment or vacate a guilty finding with prejudice. Unsurprisingly, dismissing an indictment is a worst case scenario for prosecutors and a measure so definitive that judges are hesitant to make such a determination. These remedies are rarely invoked because they preclude criminal suspects -— specifically those who have had indictments dismissed -— from ever facing trial and allow them to escape the inquiry of culpability. In fact, this notion is so repugnant to courts that until the Stein decision, only one appellate court in recent memory had ever dismissed criminal indictments [*936] due to a violation of the Sixth Amendment right to counsel. In the Stein case, the Second Circuit dismissed the indictments of thirteen former partners and associates of KPMG implicated in a fraudulent tax shelter scheme in which the Internal Revenue Service (IRS) failed to collect on at least $5 billion in taxes through schemes sold to 186 wealthy individuals, all clients of KPMG. This Note discusses relevant federal case law involving remedies for Sixth Amendment violations, specifically those in which the violation derived from prosecutorial misconduct or interference in light of the Stein decision. From there, this Note reconciles the doctrines and precedents that dictate such remedies. Part I explores remedies for constitutional violations and provides some background information on the Sixth Amendment right to counsel. Part II explores the conflict in light of the Stein decision and compares the holdings with current jurisprudence. Part III concludes that while many courts have refused to dismiss criminal indictments for right-to-counsel violations, the decision to dismiss the indictments for four of the defendants rested on sound legal theory; however, it is questionable whether or not the remaining nine defendants should have been excused from their criminal trials. The Conclusion to this Note also analyzes how the Stein decision will affect the landscape of white collar litigation, constitutional remedy interpretation, and the potential expansion of the Sixth Amendment right to counsel.