New York City Litigation Lawyers Blog

By Dan Slater

Withholding evidence — particularly that which is potentially exculpatory — is a big no-no. Just ask the Nevada U.S. attorneys office. In the case of Daniel Chapman and Sean Flanagan, two lawyers charged in 2003 for a complex securities trading scheme, the 9th Circuit Court of Appeals has upheld the dismissal of all 64 charges and refused to allow a retrial because the prosecution withheld 650 pages of potentially helpful evidence. Here’s the NLJ article.

“This is prosecutorial misconduct in its highest form; conduct in flagrant disregard of the United States Constitution; and conduct which should be deterred by the strongest sanction available,” wrote Judge Kim Wardlaw.

Chapman and Flanagan, along with three other defendants, were charged for creating a scheme called a “box job,” in which a small group secretly control corporate shares and manipulate stock through straw officers and shareholders, according to the opinion. The government alleged that the defendants made $12 million, which was allegedly laundered through Flanagan and Chapman’s law firm and various corporations.

AUSA J. Greg Damm, identified in court records as the trial attorney, assured the defense and the trial judge that he had turned over all documents, according to the NLJ. But one day before trial in 2006, he announced that the case agent, who was not on the witness list, would testify. None of his statements, memos or notes had been disclosed to the defense.

A spokeswoman for Nevada U.S. Attorney Greg Brower said her office reported the matter to the DOJ’s Office of Professional Responsibility upon dismissal. “OPR’s investigation concluded that the U.S. Attorney’s Office did not engage in any intentional misconduct,” she said.

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