Before getting into the nuts and bolts of this case, let’s return for a moment and revisit how the Bartko prosecution was supposed to prompt changes in the governments discovery policies and compliance within the Eastern District of North Carolina. The Fourth Circuit Court of Appeals said the following in the Bartko decision:

The problem is that the government appears to be betting on the probability that reams of condemning evidence will shield defendants’ convictions on appeal such that at the trial stage, it can permissibly withhold discoverable materials and ignore false testimony. Make no mistake, however. We may find such practices “harmless” as to a specific defendant’s verdict, but as to litigants in the Eastern District of North Carolina and our justice system at large, they are anything but harmless. ‘No [one] in this country is so high that [she or] he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.’ (citations omitted). The law of this country promises defendants due process, U.S. Const. [A]mend. V, and the professional code to which attorneys are subject mandates candor to the court, see Model Rules of Prof’l Conduct R. 3.3, and fairness to opposing parties, see id. R. 3.4. Yet the United States Attorney’s Office in this district seems unfazed by the fact that discovery abuses violated fairness guarantees and misrepresentations erode faith that justice is achievable. Something must be done.

Following the Fourth Circuit’s admonishments to the United States Attorney’s Office in the Eastern District of North Carolina, its discovery policy was amended effective September 6, 2013. One would assume the amendments were designed to improve discovery in criminal cases prosecuted in that district and to improve compliance with the Brady Doctrine. Looking now at the Mann case, which began in 2013 and continued into 2015, we again let the reader decide whether progress has been made with regard to prosecutorial misconduct in that district.

Harry Mann was indicted on April 3, 2013 on one count of conspiracy to embezzle, steal, purloin and convert to his own use property of the U.S. government and three counts of theft of government property stemming from an investigation by the Naval Criminal Investigative Services of an alleged scheme involving the acquisition and sale of surplus military equipment from the Navy Dare County Bombing Range. Later in 2014, the indictment was dismissed at the government’s request and Mann was re-indicted on conspiracy, extortion, bribery and theft of government property. Trial in Mann’s case before Judge James Dever, III (same judge in Bartko’s case), was scheduled for April, 2015. Before trial, Mann’s defense team filed motions to dismiss the indictment on the basis of a series of Brady/Giglio violations.The allegations of prosecutorial misconduct were very serious and included the presentation of false testimony to the grand jury coupled with large “document dumps” of discovery materials to Mann’s defense team only days before trial. Mann’s legal team sought to have the indictment dismissed as a result of the misconduct. Instead, Judge Dever continued the trial date to allow Mann’s defense team to review and assimilate the discovery materials. As the new trial date approached, the AUSA’s handling the case dumped an additional 1,500 pages of discovery on Mann’s lawyers prompting them to file a second motion to dismiss the indictment based upon the ongoing Brady and discovery violations. Judge Dever denied these motions finding that Mann’s lawyers had adequate time to prepare for trial. What were the alleged acts of AUSA misconduct?First, Judge Dever agreed in part with Mann’s lawyers that the AUSA’s presented “inaccurate testimony” to the grand jury concerning the traceability and forfeiture of proceeds of Mann’s alleged illegal activities. The Mann decision says that “two different AUSA’s elicited and failed to correct the [incorrect] testimony.” Citing well known Supreme Court decisions that address this sort of misconduct, (Kyles, Bagley and Giglio), Judge Dever stated that both AUSA’s had a duty to correct the false grand jury testimony but they did not. This was not an oversight according to Judge Dever. On the question of whether this prosecutorial misconduct was severe enough for a dismissal of the indictment, Judge Dever said he was “disappointed with the government’s conduct,” but the severest sanction of dismissal was unwarranted. In short, nothing happened to these AUSA’s for their misconduct. Again, this incident took place within 24 months of the criticism lodged by the Fourth Circuit Court of Appeals in Bartko’s case. Business as usual.The DOJ’s failure to investigate and eradicate AUSA misconduct is not only our conclusion, it is the conclusion of innumerable experts from the judiciary, the defense bar and even the prosecution bar. It’s a disgrace that the frequency of the problem has been identified, the gravity of the damage done to those crossing paths with the criminal justice system is known, and in large measure the remedy for the misconduct has been identified. Yet, the incidents of misconduct continue growing exponentially year after year. Except for those sentenced to death following a conviction tainted by prosecutorial misconduct, once the subject defendant is sentenced and on his way to prison the means available to expose the misconduct is virtually non-existent. That is why USA Today concluded in its investigation that “[t]he violations put innocent people in jail, set guilty people free and cost millions of dollars in legal fees.” A particularly eye-popping case out of a federal court in Florida involved the DOJ’s rare concession that its prosecution of the parents of a small girl abducted from their home in Florida was vexatious, frivolous, or in bad faith. After dismissal of the indictment, the parents sought a complete award of actual attorneys’ fees and costs against the government for the spurious charges. Their claim was brought under a 1997 law that permits an award to defendants that are found to have been wrongfully prosecuted called the “Hyde Amendment.” The details of the outrageous prosecution can be examined in several decisions written by U.S. District Judge Steven D. Merryday sitting in the Middle District of Florida. United States v. Aisenberg, 247 F.Supp. 2d 1272 (M.D. Fla. 2003). In short, Judge Merryday found that the AUSA who prosecuted the parents, Stephen Kunz, did so vexatiously and held that the Hyde Amendment allowed the parents to recover their fees and costs incurred in their defense. Initially, the Aisenbergs were awarded $2,680,602 in fees and $195,670 in expenses but the government appealed these sums to the Eleventh Circuit Court of Appeals. Following the appeal, the government prevailed to some extent and the DOJ ultimately paid a total of $1,494,650 to the Aisenbergs. Don’t get the wrong idea as the Hyde Amendment is very difficult to apply to prosecutions that are shown to be vexatious or without any factual basis. The larger question is what happened to Mr. Kunz, the errant AUSA that brought the case in bad faith?

AUSA Kunz was investigated by the OPR for his misconduct. As far as we know the results of that investigation were never available to the public, but it is known that OPR’s conclusion on Kunz’s misconduct was at odds with Judge Merryday’s findings that the decision to prosecute the Aisenbergs had been vexatious or undertaken in bad faith. Ultimately, Kunz was removed from prosecuting criminal cases in the Middle District of Florida and assigned to handling civil cases. Kunz then quit, but became an AUSA in the Northern District of Florida where he continues to prosecute criminal cases, at least through December, 2018. After the Florida Bar reviewed his misconduct, Kunz received a public censure, a mild form of public discipline. In other words, nothing much happened to Kunz and his employment as an AUSA with the DOJ continued unabated. This scenario is by far the rule as opposed to the exception. AUSA’s are simply not held accountable for their malfeasance. We will continue to report cases we become aware of where prosecutorial misconduct likely altered the outcome of a conviction. There is no shortage of supply.