|Footnotes for this article are available at the end of this page.
On July 16, 2021, Judge Darrin P. Gayles of the Southern District of Florida indicated his intent to grant a new trial to three defendants, Matthew Pisoni, Marcus Pradel, and Victor Ramirez, based on his determination that Department of Justice (“DOJ”) attorneys knowingly engaged in prosecutorial misconduct by obtaining privileged documents and deliberately misleading the Court regarding their actions.1 Prosecutorial misconduct occurs when a prosecutor breaks a law or rule of professional ethics during the performance of their duties. While prosecutors have difficult and demanding jobs, and the vast majority are dedicated public servants, in this instance, the Court was not faced with accidental errors subsequently identified, acknowledged, and rectified, but rather apparently found intentional and egregious ethical violations. Such conduct by federal prosecutors obviously is of great concern for defendants, but it also is highly problematic for the entire criminal justice system, as it calls into question the very integrity of that system while undermining the validity of criminal convictions.
The criminal prosecution of Pisoni, Pradel, Ramirez, and a fourth defendant, John Leon, began in 2015 with a thirteen-count indictment. The charges stemmed from a multi-year fraud scheme allegedly perpetrated by defendants where they created and sent letters that falsely informed recipients they had won prizes in a sweepstake or lottery but would need to pay fees ranging from twenty dollars to fifty dollars in order to collect their purported winnings. Prior to the issuance of the indictment, the four defendants became aware they were under investigation, hired individual counsel, and entered into a Joint Defense Agreement (“JDA”) on November 7, 2014.2
Unbeknownst to Pisoni, Pradel, and Ramirez, however, Leon eventually began cooperating with prosecutors in violation of the JDA. He repeatedly participated in strategy meetings with the other defendants and their attorneys and reported the substance of those meetings to prosecutors.
The other defendants remained unaware of Leon’s conduct until April 20, 2016, when prosecutors issued a superseding indictment for Leon. At that time, the other defendants learned that Leon had signed a plea agreement on February 17, 2016, and had been in regular contact with the prosecution team. Understandably alarmed by this information, defense counsel for Pisoni, Pradel, and Ramirez filed to dismiss the indictment and requested an evidentiary hearing, which took place over two days on October 17 and November 1, 2017. During that hearing, the other defendants learned that Leon met with the prosecution team on at least seven occasions, all while he was subject to the JDA, and provided information obtained from his co-defendants and their counsel to the government in violation of the JDA.
Although the Court determined prosecutors had obtained privileged information, the Court found dismissal to be too extreme of a remedy based on the prosecutors’ assurances that they were unaware of the JDA, did not know they were obtaining privileged information, never received any documents from Leon, and had independent sources for all privileged information obtained. Instead, Judge Gayles struck Leon from testifying at trial. It was only years later that an investigation by the DOJ Office of Professional Responsibility (“OPR”) revealed that the prosecutions’ assurances were almost entirely false.3
Undeterred, counsel for Pisoni, Pradel, and Ramirez continued to pursue relief, seeking dismissal of the prosecution team that worked with Leon and requesting a hearing to examine the scope of information improperly obtained by the government. However, their efforts were unsuccessful, and trial began on June 26, 2017, with the original prosecution team. Following seventeen days of trial, all three defendants were convicted of one count of conspiracy to commit mail fraud, with Pisoni and Ramirez receiving 84-month sentences and Pradel receiving a 78-month sentence.
While this could have marked the end of defense counsel’s efforts to address the prosecutor’s misconduct, instead, it marked the beginning of a four-year process that would culminate in revelations of significant misrepresentations to the Court and a new trial for Pisoni, Ramirez, and Pradel.
On January 9, 2018, the government filed a Notice to Correct Record, where it disclosed that the original prosecution team had received written materials from Leon, contrary to their representations to the Court. As a result, the original prosecutors were removed from the case, new counsel was assigned, and the prior prosecutors’ conduct was placed under renewed scrutiny. As part of that process, the Court ordered the disclosure of materials obtained by the DOJ during their parallel OPR investigation into this matter, which also stemmed from the Notice to Correct Record. The documents obtained ultimately revealed that prosecutors not only made numerous misrepresentations to the Court, which formed the foundation of the Court’s decision not to dismiss the indictment or replace the prosecution team, but that the misconduct by prosecutors stretched far beyond what was initially identified.
Specifically, it was revealed that the prosecutors: (1) were fully aware of the JDA between the defendants; (2) were aware of, and approved, every meeting between Leon and the other defendants following his plea agreement; (3) obtained extensive handwritten notes and other documents from Leon regarding defense strategy; (4) specifically obtained information regarding witnesses and documents the defense intended to rely on at trial; and (5) internally discussed the written documents obtained from Leon prior to the evidentiary hearing but told to the Court that it had no such documents. Armed with this new information, counsel for Pisoni, Pradel, and Ramirez filed a Joint Motion for New Trial on February 28, 2020, asserting that the prior prosecutors’ claims of inadvertently obtaining privileged information with no prejudicial impact were patently false.
Faced with compelling documentation from the DOJ’s own internal review, the government sought to minimize its impact. It claimed that this new information was not “newly” discovered, and, even if it was, the defense had failed to diligently pursue it during trial, such that it should not be considered. Seemingly aware of the tenuous basis for these positions, the government also relied heavily on arguments that defendants could not prove that the information obtained would have resulted in a different outcome at trial. However, their arguments did not sway the Court, as the Court found that the original prosecution team not only intentionally obtained and utilized privileged materials pertaining to the defendants’ trial strategy, but also made repeated misrepresentations to the Court when initially confronted about that conduct.
While any form of misconduct by an attorney is highly problematic, misconduct by federal prosecutors is particularly troublesome. As explained by the United States Supreme Court in 1935:
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 two-fold 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.
It remains unclear whether the new trial will result in a different outcome for Pisoni, Pradel, and Ramirez; however, the Court was well justified to order this extraordinary relief. Now, the question remains how to sanction the attorneys involved in the case appropriately. Given the egregiousness of their conduct and its potential impact on the public’s faith in the justice system, some form of punishment would seem merited. Whatever form this takes, it should serve as a reminder to all attorneys of the importance of professional integrity and the duty of candor to the Court.
 Currently, the Court has yet to issue a written order for the new trial. Once issued, the DOJ may choose to appeal the case. However, regardless of that potential appeal, this case will remain significant based on the extraordinary relief granted by the trial court.
 A JDA is an agreement between separately represented parties with common legal interests that allows the parties to share confidential information without waiving the attorney-client privilege, work product protection, or other applicable privilege.
 OPR serves to investigate allegations that DOJ attorneys, prosecutors, and immigration judges have committed misconduct while performing their duties to investigate, litigate, or give legal advice.