CHAPTER THIRTEEN from "Drugging America - A Trogjan Horse" http://www.druggingamerica.com/
A FAIR TRIAL
by Rodney Stich © 2002
Everyone deserves a fair trial, and certainly someone charged with a non-violent offense. Anyone charged with an offense also deserves to have an attorney who is not involved in a conspiracy with the prosecutor to undermine the defendant’s lawful defenses. That was not the case with Claude DuBoc, a French-Canadian, who was arrested in Hong Kong in 1994 on an international arrest warrant issued by U.S. Attorney Michael Patterson in Gainesville, Florida. The warrant falsely charged that DuBoc headed an organization transporting marijuana into Florida.
DuBoc had never been in Florida and his drug transporting activities never touched the state. There were several reasons for seeking to trap DuBoc into committing an offense that he had no intention of doing. The informants sought to have charges dropped against them by giving perjured testimony about DuBoc that was requested by the prosecutor. The prosecutor wanted to bolster his record of convictions and seizure of forfeitures. And DuBoc had over $100 million in assets that would be fabulous trophies for anyone who brought about a conviction.
The informants concocted a scheme seeking to induce DuBoc to ship marijuana into Florida, when DuBoc had no interest in doing it-and never did. The government informants tried several times to get DuBoc to agree to their plan, and he repeatedly rejected their attempts.
Regardless of DuBoc’s refusal to become involved in a drug operation concocted by the prosecutor and government informants, DOJ prosecutors obtained an indictment against DuBoc from a grand jury in Gainesville, Florida, on the basis of perjured testimony.
Supplier of Marijuana, But not in Florida or the United States
For 15 years, until his arrest on March 23, 1994, DuBoc controlled companies that transported marijuana, supplying the burgeoning demand for that product. These companies operated primarily into Canada, but not into Florida where the indictment was obtained. The proceeds from their operations were controlled by off-shore Hong Kong companies, and their attorneys and accountants resided in Switzerland and Luxembourg. Justice Department prosecutors did not seek to indict these other sources, possibly because sham charges against them would not succeed.
Imposing U.S. Fiat Upon the World
Under law or by practice, a country can legalize the production, use, or transportation of drugs. The legalization or decriminalization of drugs had been considered and recommended by many people in the United States. I don’t recommend that this be done, but if the United States can consider legalizing drugs, there is nothing that keeps another country from doing the same, either by law or by accepted practice.
In California, for instance, the state’s primary cash crop is said to be marijuana, and many law enforcement personnel look the other way, allowing this practice to continue. In 1998, various communities in California enacted laws legalizing "medicinal" use of marijuana, including Oakland and San Francisco.
DuBoc’s companies conducted much of their marijuana transportation from Hong Kong. Arguably, United States authorities in Florida, 8000 miles away, should not have any jurisdiction to indict someone in Hong Kong and extradite him to stand trial in Florida for activities occurring in countries outside the United States.
DOJ Purchase of Perjured Testimony
The charges against DuBoc were based upon the statements of drug traffickers seeking to have the Justice Department drop charges against them. It has become common practice for prosecutors to reward people charged with criminal offenses or those already in prison, for testimony against a defendant. Oftentimes the testimony is knowingly false, or the false statements are given to the informant by the prosecutor for use during grand jury or trial proceedings.
Getting on the Conspiracy-To-Foster-A-Crime Bandwagon
Justice Department prosecutors in Gainesville, Florida, encouraged Sonia Vacca and attorney Matthew Martenyi to induce DuBoc to ship drugs into Florida. Also attempting to get criminal charges dropped was Clifton Brown, a fugitive from prosecution in Gainesville, Florida, who was wanted on a drug smuggling charge. He heard about the scheme to get DuBoc arrested and recognized an opportunity to give false testimony and get charges dropped by joining Vacca and Martenyi in trying to get DuBoc to commit a federal drug offense. Government agents were seeking to bring about a criminal act where none would otherwise occur without their connivance.
Despite repeated efforts, including meetings with DuBoc in Los Angeles and San Francisco, DuBoc rejected their overtures. This rejection was known to Justice Department attorneys and revealed by testimony given in a criminal trial several months earlier. (U.S. V. Nicholas Grenhagen, Matthew Martenyi and Sonia Vacca, 1:93:CR. 01043) During the trial, Vacca and Martenyi described their attempts to induce DuBoc to ship drugs into Florida and his refusal to do so. In that trial, the jury refused to convict the defendants.
Fabricating Criminal Charges
Despite DuBoc’s refusal to ship marijuana, Justice Department prosecutors used false statements from government informants to obtain an indictment from a federal grand jury at Gainesville, Florida (March 10, 1994). The indictment charged DuBoc with possession of marijuana with intent to distribute, conspiracy to import marijuana into Florida, and conspiracy to transport funds relating to the marijuana. (The case number in U.S. District Court at Gainesville was Case Nr. 94-CR-01009.) For jurisdiction to exist in Florida, it was necessary that some part of the criminal activities be accomplished in that state.
Despite the absence of jurisdiction and absence of an offense, DOJ prosecutors sent an extradition warrant to Hong Kong for DuBoc’s arrest. The Justice Department arranged with a U.S. Customs informant to induce DuBoc to attend a meeting in Hong Kong at which there was to be a transfer of assets owned by DuBoc. When DuBoc appeared, he was arrested on the basis of the Florida extradition papers.
DuBoc’s First Mistake: Relying on and Trusting Attorneys
Shortly after being arrested in Hong Kong, DuBoc sought legal advice from attorney Henry J. Uscinski of the Coudert Brothers law firm that had offices in the United States and overseas. Uscinski said he was an expert in extradition. After being hired-and without making an adequate check into DuBoc’s defenses. Uscinski urged him to waive extradition. This was very bad advice.
Under international law, DuBoc had the right to challenge the evidence upon which the U.S. extradition was based. For instance, U.S. law relating to extradition requests from other countries is stated in Title 18 USC Section 3184:
[The accused and subject of the extradition shall] be brought before [the judge] to the end that the evidence of criminality may be heard and considered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government, for the surrender of such person, according to the stipulations of the treaty or convention; and he shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.
Insuring Windfall Legal Fees
The Coudert Brothers law firm could have filed an objection to the extradition and within a matter of days determined through investigation that the charges against DuBoc were without foundation. But by encouraging DuBoc to waive extradition, they could expect sizable legal fees from defending him in the United States that could not have been obtained by simply defending against extradition. (Also, as described in greater detail in Defrauding America, many law firms are covert fronts for the CIA and Justice Department and could be expected to provide advice beneficial to their hidden government ties and adverse to their clients.)
Attorneys Surely Knew of DOJ Fraud and Perjured Testimony
The Coudert law firm surely knew that once DuBoc waived his extradition defenses that he would be virtually powerless to defend himself against the misuse of power by federal prosecutors. It was known throughout the legal system that Justice Department prosecutors routinely hide exculpatory evidence, repeatedly fabricate evidence and pay witnesses to lie. Also known throughout the legal fraternity, DOJ prosecutors would seek a court order blocking DuBoc from using his own assets to hire his own attorneys on the argument that the assets were obtained from criminal activities and thereby forfeitable. One exemption from denial of funds for legal counsel is when the attorneys make a secret deal with the prosecutor to sacrifice their client for prosecutors’ approval to use seized assets for legal fees.
Without access to his own funds, DuBoc would have to rely upon court-appointed attorneys. And these court-appointed attorneys usually provide dismal defenses and often protect their relationship with government attorneys.
Second Mistake: Hiring Media-Dubbed Dream Team of Lawyers
Foolishly waiving extradition, DuBoc arrived in California in chains. Instead of hiring the Coudert Brothers law firm, DuBoc hired Robert Shapiro to be his legal counsel. Shapiro was based in Los Angeles and DuBoc’s criminal trial was in Florida, making Shapiro an unsuitable legal counsel.
Shapiro then hired as co-counsel, who would do most of the work, Florida-based F. Lee Bailey, who was a partner in a Miami law firm that was closer to the trial location. Bailey was best known for such high-profile clients as Patty Hearst, the Boston Strangler, Dr. Sam Shepard, the air traffic controllers union, and being part of the media’s so-called "dream team" representing the killer of two innocent people, O.J. Simpson.
DuBoc Trusting Bailey with Millions: Another Mistake
Bailey demanded DuBoc pay a huge up-front retainer fee. DuBoc transferred to Bailey, for safekeeping and security for fees, 602,000 shares of pharmaceutical stock in a Canadian growth company, BioChem Pharma, Inc. At that time, the stock was worth over $6 million, and expected to greatly increase in value after the FDA approved an AIDS drug that the company had developed. Its value would then increase to over $26 million.
Bailey became lead counsel and brought into the case another attorney, Ed Shohat of the Miami law firm of Bierman, Shohat, Loewy, Perry & Klein. DuBoc now had Ed Shapiro, Francis Lee Bailey, and Ed Shohat technically defending him, which should have been a fabulous defense team. Looks are often deceiving.
Defense Evidence was Readily Available, and Ignored
Even the most basic defense investigation required that DuBoc’s attorneys examine the transcript of the Grenhagen trial where the charges against DuBoc were allegedly raised, contact the attorneys involved in that trial, and those witnesses who testified. This was not done. (In the Grenhagen case, Lloyd Vipperman was Grenhagen’s counsel, and the law firm of Wachtel and Weinberg were the attorneys for Vacca and Martenyi.)
Sabotage Against DuBoc Started Early
Bailey met with Justice Department attorneys before he met DuBoc, and the conversations between Bailey and the prosecutor bode very poorly for Bailey’s client. None of the usual investigations were conducted by Bailey, which would have shown that the prosecutor’s case against DuBoc was riddled with holes. Bailey relied almost completely-or solely-on what the prosecutor stated to him.
Sabotage your Client-Or You Don’t get Paid!
The prosecutor told Bailey that the fees and assets DuBoc had turned over to him were forfeitable assets and that he would have to turn them over to the government. However, the prosecutor said, if Bailey could get DuBoc to plead guilty to every charge made against him and conveyed to the government all of DuBoc’s worldwide assets, Justice Department prosecutors would allow Bailey and his attorney associates to keep up to $3 million of DuBoc’s assets. DuBoc’s assets totaled over $100 million. Not a bad deal for sabotaging a client! (I encountered the same sabotage with a Las Vegas attorney, Joshua Landish, who conspired with government attorneys to corruptly strip me of the $10 million in assets that funded my exposure activities against the government. (See the third editions of Unfriendly Skies and Defrauding America.)
DuBoc’s Attorney Became A Secret Agent for the DOJ Prosecutor
Bailey agreed to do as the prosecutor demanded. He secretly becomes an agent for the prosecutor, undermining his own client, with the expected result that DuBoc would spend the remainder of his life in prison. This secret agreement was a contingency agreement with the prosecutor. Bailey’s goal would be to convince his client to abandon all defenses available under the laws and Constitution of the United States, forfeit his worldwide assets, and agree to go to prison for the remainder of his life-so that Bailey could get a $3 million windfall.
If Bailey did not convince DuBoc to plead guilty, Bailey would lose the prosecutor’s assistance in getting a fee, and Bailey would have to rely upon the normal legal process to collect fees from his client. This required more effort than was required by sabotaging his client.
Pressuring DuBoc to Plead Guilty
Within days of DuBoc’s arrival in Florida, and without performing the most elementary check of DuBoc’s defenses, Bailey told DuBoc that the evidence against him was overwhelming. This, of course, was not true. DuBoc was pressured by Bailey to plead guilty to all charges and to transfer his worldwide assets to the U.S. government.
At that time, DuBoc didn’t know the particulars relating to the charges, and assumed that Bailey and the other attorneys he hired were performing the normally required defense investigations. He had no awareness of the culpability in the legal fraternity, the Justice Department, or as he would soon learn, by federal judges.
On April 13, 1994, DuBoc appeared for arraignment in the U.S. District Court at Gainesville, Florida, and by that time Bailey had sabotaged his client. DuBoc’s goose was cooked!
Prosecutor Violated Legal Duty to Turn over Exculpatory Evidence
Under law, it is the prosecutor’s responsibility to turn over to the defense any exculpatory evidence that they have which would support the defendant’s innocence. The requirement to turn exculpatory evidence over to the defendant is often referred to as the Brady rule. This duty was violated in DuBoc’s case. This responsibility is openly and repeatedly violated by prosecutors, causing many men and women to be sentenced to prison, sometimes for life. Rarely, if ever, are prosecutors punished for corrupting the legal process in this matter. The system protects them.
American Bar Association Defense Requirements
Under the ABA’s Defense Requirement criteria (4-4.1), a defense attorney is required to perform an examination of the government’s charging documents, conduct an examination of the evidence, interview the accused, interview potential witnesses, and interview the prosecutors, among other defense responsibilities. The guidelines required by the National Legal Aid and Defender Association for Criminal Defense Representation (12-1994) state that legal counsel couldn’t effectively advise their client as to the optimal course of action without knowing all the facts. None of DuBoc’s first group of attorneys performed these basic requirements.
Dining With Co-Conspirators
On April 19, 1994, Bailey and Shapiro had dinner with Assistant U.S. Attorneys Greg Miller, Tom Kirwin, Roy Atchison, and DEA Agent Carl Lilley. During the dinner meeting, the previous attorney fee agreement was again confirmed, that Bailey would sabotage his client by having DuBoc plead guilty to all charges and transfer all assets to the U.S. government. The conversation focused almost entirely on the $3 million that Bailey would receive.
Judge Secretly Approved the Scheme
The secret contractual agreement between the Justice Department and DuBoc’s attorney needed the approval of U.S. District Judge Maurice Paul. Prior to the judge granting his approval, DEA agents had warned Judge Paul of the corrupt nature of the secret agreement and its violation of federal due process protections. Judge Paul, a former Justice Department prosecutor, conducted a hearing in his chambers (May 17, 1994), during which the details were again given to him. Despite the corrupt nature of the arrangement between DuBoc’s attorneys and DOJ prosecutors and the criminal nature of the conspiracy, Judge Paul approved the plot against DuBoc. There was no court reporter present and no records were kept, which eliminated any record of the corrupt arrangement.
That agreement, with judicial approval, required that Bailey totally abandon all of DuBoc’s safeguards provided by statutes, decisional law, and the Constitution. With Judge Paul’s approval, the secret agreement:
Violated federal law requiring judges to insure that defendant’s legal counsel did not have any interest that conflicted with their client.
Violated criminal law against conspiracies, and the agreement between the prosecutor and DuBoc’s attorneys constituted a conspiracy.
Violated criminal law relating to fraud.
Violated DuBoc’s legal and constitutional rights to have competent and honest legal counsel, as defined in part by the Sixth Amendment to the U.S. Constitution; Federal rule of civil procedure 44; title 18 USC Section 3006(A)(b).
Violated Florida Bar Rules of Professional Conduct prohibiting attorneys from entering any business transaction adverse to their client.
"It is troubling…"
Loyola School of Law professor and former federal prosecutor Laurie Levenson later said that forfeiture agreements are in writing, almost never verbal, especially when such a large amount is involved. Putting it extremely mildly, Levenson said that the unwritten deal in the judge’s chamber makes federal prosecutors and Bailey look bad.
It strikes me as unusual for the U.S. Attorney’s office to appoint Bailey as stock advisor for DuBoc’s assets. It is troubling to say the least. It raises questions about whether Bailey is representing DuBoc or representing the government. And the problem with lack of procedures is that there is lack of accountability. Then people become suspicious of each other.
Another indication that the secret hearing took place, in Judge Paul’s chambers, was a January 4, 1996, letter Bailey sent to Judge Paul. That letter reminded the judge of the May 17, 1994, hearing at which it was agreed between Assistant U.S. Attorney (AUSA) David McGee and the judge that Bailey would receive $3 million for inducing DuBoc to plead guilty to all charges and forfeit his worldwide assets.
Relying Upon Good Faith of Justice Department Prosecutors!
During a discussion between Bailey, Shohat, and Shapiro, Bailey stated he was going to recommend that DuBoc plead guilty. Bailey told DuBoc that his case was untriable, and that "We would rely on the good faith of the government to do that in a fair manner and that the onus to perform was on DuBoc." Nobody in their right mind, who is privy to the culture in the Justice Department, would associate "good faith" with Justice Department conduct. Shapiro, refusing to sabotage DuBoc, spoke out and said, "If we don’t have an agreement, we’re going to trial!" Apparently Shapiro didn’t know about the secret agreement between Bailey and the prosecutors. Also, he didn’t persist with sufficient aggressiveness to protect the client who initially put his trust in Shapiro’s hands.
Legal Requirements Before the Judge Can Accept A Guilty Plea
On May 17, 1994, DuBoc changed his plea from not guilty to guilty. That was probably the worst mistake DuBoc had ever made in his life. Court records show that the plea agreement provided that DuBoc’s drug-related assets would be forfeited at the time of his sentencing, pursuant to Title 21 USC Section 853. To insure defendants are not deprived of their legal protections, federal law requires that the decision to plead guilty must be made knowingly and voluntarily, which means the defendant must know all the facts relating to his case, including what the charges are based upon, and what defense evidence exists. Obviously, a conspiracy between the defendant’s attorney, the prosecutor-and even the judge-did not meet these protections.
A federal publication, referring to Federal Rule of Criminal Procedure rule 44(c), described its intent:
It is contemplated that under rule 44(c) the court will make appropriate inquiry of the defendants and of counsel regarding the possibility of a conflict of interest developing. Whenever it is necessary to make a more particularized inquiry into the nature of the contemplated defense, the court should "pursue the inquiry with defendants and their counsel on the record but in chambers so as to avoid the possibility of prejudicial disclosures to the prosecution." In United States v. Foster, it was emphasized that each defendant be "fully advised of the facts underlying the potential conflict and is given an opportunity to express his or her views." United States v Alberti, 470 F.2d 878 (2d Cir. 1973). The rule particularly requires that the court personally advise each defendant of his right to effective assistance of counsel, including separate representation.
Rule 11 Protection
Another protection provided by Federal Rules of Criminal Procedure rule 11 requires that if a defendant pleads guilty, the judge must address the defendant in open court and inform him of certain legal protections. The judge must ask if the offense to which the defendant pleads guilty was not the result of force, threats or of promises apart from the plea agreement. When a prosecutor assures a defendant that if he or she pleads guilty, he or she would only get a light or suspended sentence, the defendant can’t admit this to the judge. The defendant has to say "no," when in fact the truth is "yes," he was promised something in return for having pled guilty. The judge knows this; in most cases, he was a prosecutor or attorney.
In DuBoc’s case, Judge Paul knew DuBoc did not know about the secret agreement between DuBoc’s attorney and the prosecutor-which Judge Paul approved, and that he himself was sabotaging the defendant appearing before him.
One of many Supreme Court decisions addressing conflict of interest was Faretta v. California, 422 U.S. 806 (1975):
When a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant’s chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from future attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendant’s comprehension of the waiver. Under such circumstances, the court can elect to exercise its supervisory authority over members of the bar to enforce the ethical standard requiring an attorney to decline multiple representation.
DuBoc Starts to Recognize Attorney Misconduct
When DuBoc placed his BioChem Pharma stock with Bailey for safekeeping, DuBoc told Bailey that none of the stock was to be sold. In December 1995, DuBoc discovered Bailey had sold some of the stock. Feeling betrayed, DuBoc filed a motion with the court (December 22, 1995) for substitution of legal counsel, replacing Bailey with Henry Uscenski and Mark Lebow of the Coudert Brothers law firm. This substitution was approved on January 11, 1996.
Change of Attorneys Continued the Sabotage
If DuBoc thought changing legal counsel would improve the quality and integrity of legal representation, he would soon find out otherwise. It was the Coudert Brothers that encouraged DuBoc to waive extradition when there was sufficient evidence to oppose being extradited. Upon replacing Bailey, the Coudert Brothers simply continued the secret agreement Bailey had with the prosecutor, and made no meaningful investigation of DuBoc’s defenses. The Coudert Brothers had to continue the secret agreement, or their legal fees would not be assured; they would have to work for them. Court filings showed that by their own admission, the Coudert attorneys failed to review any of the records of evidence in the case, that they continued the course set by Bailey, and entered into the identical fee agreement as existed between Bailey and the prosecutor.
Thank You Letter for Sabotaging Client’s Legal Rights
A "thank-you" letter for sabotaging their client was sent (February 14, 1997) by Justice Department attorney Linda M. Samuel to attorney Henry Uscinski of Coudert Brothers. Samuel wrote that she appreciated the "assistance that your firm has rendered to date." None in this legal fraternity showed any concern for the sordid treatment of a client!
The assistance she was referring to was the law firm sabotaging DuBoc’s legal defenses. Samuel was special counsel to the Department of Justice asset forfeiture and money laundering section. DuBoc could not be expected to feel the same appreciation!
On August 11, 1997, the Coudert Brothers filed a motion for interim payment of fees and expenses, despite the fact that instead of providing DuBoc a defense, they sabotaged him. The fees were approved by the "system:" the DOJ prosecutor and Judge Paul.
Substitution of Attorneys Meant Big Problems for Bailey
The substitution of attorneys meant big problems for Bailey. The substitution prompted Justice Department prosecutors to set an emergency hearing for April 24, 1996, seeking a court order requiring Bailey to turn over to the government DuBoc’s stock that had been left with Bailey for safekeeping. The seizure was sought under Title 21 U.S.C. Section 853. Under the guilty plea that DuBoc foolishly signed, there would be no forfeiture until the court sentenced him, and he had not yet been sentenced. There should not have been any forfeiture motion or hearing. No problem; just ignore the rules!
Without DuBoc’s permission and contrary to DuBoc’s instructions, Bailey sold 200,000 shares of the original 602,000 shares of BioChem Pharma stock for $3 million. Bailey then borrowed another $2 million from the Swiss bank, Credit Suisse, using the remaining 402,000 shares as collateral for the loan. He now had $5 million of DuBoc’s money and for it the only thing he had done was sabotage his client.
DuBoc didn’t want the stock sold, as the president of BioChem was a good friend and the sudden sale of a large block of stock would adversely affect the value of the remaining stock and the company. Since DuBoc placed his stock in Bailey’s control, it had risen in value to almost $30 million.
With this cash windfall, Bailey purchased two airplanes, a 76-foot yacht, put a $200,000 down payment on a house in Florida, paid for extravagant personal expenses, and funded his many trips to Los Angeles as part of the O.J. Simpson trial. Like a little boy who didn’t want to give up his toys, Bailey said after court: "They gave me the stock! They said you can do whatever you want with it! Nobody ever made a claim on it! There are no documents!"
Judge Paul ordered Bailey to turn over to the government the remaining 402,000 shares of the BioChem stock and return the money Bailey had received from the sale of the other 200,000 shares. The Justice Department argued that Bailey was authorized by the government to use the proceeds from the sale of the stock only to cover his expenses in selling DuBoc’s European real estate. Justice Department prosecutors claimed Bailey used the proceeds from the sale of the stock for personal expenses rather than for the expenses associated with the sale of DuBoc’s properties, spending an additional $3 million for personal and professional expenses unrelated to this function. Justice Department attorneys accused Bailey of milking DuBoc. But what the prosecutors meant was that it was they who wanted to "milk" DuBoc’s assets. Judge Paul said:
From the evidence presented to this court, it would not be an overstatement to say that Mr. Bailey, from May 1994 until the present time, has lived and financed his businesses almost exclusively from the funds generated by sale or loans secured by the BioChem Pharma stocks.
Further Legal Sabotage
During the forfeiture hearing, two attorneys from Coudert Brothers were listed as attorneys of record. But neither attorney made an appearance on DuBoc’s behalf. If they had made an appearance, and had objected to the seizure of DuBoc’s stock, they would have put themselves in violation of the secret agreement that they had with the prosecutors. And this meant they would not get any fees from the assets the government was seizing from DuBoc. DuBoc was forced to appear without an attorney and without advice of legal counsel as he waived his rights to the stock.
Pay or Go to Jail
During the January 25th hearing, Judge Paul gave Bailey until February 29th to surrender the BioChem Pharma stock and provide financial records pertaining to the 602,000 shares he had initially received. He must also pay to the court the $3 million he had withdrawn from a Swiss account and which he used for personal expenses. The next hearing was set for February 3, 1996.
More Legal Chicanery
An article in the Florida Star-Banner (February 3, 1996) said:
AUSA David McGee further struck at Bailey, asking if he knew that his attorney [Zuckerman] had just the day before told the Swiss authorities in a letter that the stock was from drug money. The Swiss government then froze the stock, after the U.S. court had already ordered that Bailey produce the stock.
Trying to avoid appearing at the February 3, 1996, hearing, Bailey asked a New York judge to set a hearing on another case for the same Friday. Bailey then sought to use that conflict in court appearances as an excuse for not appearing in the Ocala, Florida court. The plan didn’t work.
During the February 3rd court appearance, Bailey told the court he did not remember how he spent the proceeds from selling $3 million in stock. (Friend of Bill Clinton?) He testified that he did not report it as income because he was advised by his attorney and accountants that he didn’t have to. A $3 million windfall and he didn’t have to report it as income!
A Liar, A Cheat, and Unethical
Prosecutor McGee accused Bailey in court of being a liar, a cheat and unethical. "He has defied the order of this court. I suggest, your honor, that you put Mr. F. Lee Bailey in jail in this district until he produces to this court the money he has stolen from the people of the United States." (People of the United States? These European assets were stolen from DuBoc under corrupt conditions by government employees; the people of the United States had no right to them!)
McGee continued, "You sold Mr. DuBoc down the river for a little money-I should say, a lot of money-didn’t you, Mr. Bailey?" This was something like the "pot calling the kettle black." Later, McGee accused Bailey of cheating on his income tax return and failing to show the money that was generated from the sale of the stock. No charges for income tax evasion were filed against Bailey. The threat by the Justice Department to charge Bailey with failure to report the income could easily cause the prosecutor to pressure Bailey to sabotage another client-or be charged with a felony.
The Media’s Dream-Team in Action: Not Seen on TV
During this hearing, two of the nation’s most publicized attorneys faced each other in U.S. District Court at Ocala, Florida. Members of the media-drubbed "dream team," F. Lee Bailey and Robert Shapiro, were in court as the government sought to wrest control of DuBoc’s stock from Bailey. Shapiro testified about the ownership of the stock, stating that everyone familiar with the deal knew Bailey was not supposed to keep the stock or any money he received from the sale of it. Bailey called Shapiro’s testimony "an absolute fabrication."
Bailey-Shohat Partnership Exploded
Another attorney at odds with Bailey was Ed Shohat of the Miami law firm of Bierman, Shohat, Loewy, Perry & Klein, who Bailey had hired to help with the DuBoc case. But this partnership soured real fast. Shohat sued Bailey in 1996. According to court records, Bailey said Shohat "was a liar, could not conduct himself with honesty and fidelity, was guilty of misconduct, was guilty of a felony, would conspire to kidnap a criminal defendant’s child, and could not be trusted to conduct himself honorably in or out of court." Bailey accusing someone else of character flaws?
Revealing Legal Fraternity Culture in Pattern of Deception
Possibly the reason for Bailey’s remarks about Shohat was that Shohat was a witness whose testimony was unfavorable to Bailey as the government sought to have Bailey turn DuBoc’s assets over to the court. Bailey had accused Shohat of plotting deals to help DuBoc win favor with federal officials. "It’s really sad that it has come to this," said Mark Lebow of the Coudert law firm, which at that time was representing DuBoc. For DuBoc, this could have been viewed as an incredible comedy of legal fraternity deception if it didn’t have such terrible consequences for him.
Further Confirmation of Secret Agreement to Sabotage Client
During Bailey’s contempt of court hearing on (February 2 and 3, 1996), attorney Lebow-allegedly defending DuBoc-testified, "Your honor, we have a duty to cooperate with the government [Justice Department]." In the contempt proceedings against Bailey, prosecutor David McGee stated:
Mr. Bailey took the money, put it in his own pocket and made up an absurd and unbelievable lie to bring this court when caught red-handed doing it. He has acted in complete and total derogation of his obligations to the people of the United States, in complete and total derogation of his obligations to his profession, and in complete and total derogation of his obligations to his client. He did it for the oldest, the more tiresome and the least excusable reason-to put money in his own pocket. For that, he gives up ethics, he lies, and he cheats.
Judge Paul rendered an order: "If Mr. Bailey fails to purge himself of this contempt by the times outlined in this order, he shall surrender himself to the United States Marshal in Gainesville, Florida, on March 1, 1996, to commence serving his sentence of contempt."
"Clutching, Clawing and Scraping"
Bailey filed a notice of appeal to vacate Judge Paul’s order. In his appeal, Bailey argued that he had made a good-faith effort to comply with the judge’s order to turn over the stock but that he had not yet succeeded. Bailey argued that Justice Department prosecutors, with the verbal approval of Judge Paul, agreed that Bailey could keep the stock on condition that DuBoc pled guilty to all charges and conveyed his worldwide assets to the government. Bailey said that this agreement allowed him to profit on the increased value of the stock. On March 1, 1997, Court of Appeals Judge Ed Carnes turned down Bailey’s appeal and said Bailey had been "clutching, clawing and scraping" to keep the assets.
Jail For Bailey
Bailey surrendered to the U.S. Marshall in Gainesville, Florida, on March 1, 1996. From jail, Bailey was able to borrow money to cause release of the stock. In April, Bailey entered into an agreement, turning over to the court the remaining BioChem Pharma stock, a 74-foot yacht purchased with the proceeds of an earlier stock sale, and other assets. Bailey’s time in jail gave him a small taste of what his client, Claude DuBoc, would be facing for the remainder of DuBoc’s life-thanks in major part to Bailey’s sabotage of his client.
Bailey was released from jail, but Bailey’s attorney, Roger Zuckerman, said Bailey would try to reclaim the shares through "a more appropriate form" like the Court of Claims. This was stated despite the fact that Bailey signed an agreement with the court that prohibited him from pursuing any claim "now or in the future, not only in this forum but in any other."
In October 1996, Bailey sued the federal government in the Court of Claims for $10 million, arguing that DuBoc’s stock, taken from him by Judge Paul, rightfully belonged to him. Or at least, that the increase in the stock’s value should belong to him.
During a hearing in the Court of Claims on the Justice Department’s motion to dismiss the complaint, Bailey’s attorney, Roger Zuckerman, argued that prosecutors failed to document the agreement reached in Judge Paul’s chambers in May 1994 that Bailey was to keep the stock. (No one asked DuBoc under what conditions he placed the stock in Bailey’s hands.)
DOJ Admitting to the Secret Agreement Against DuBoc
In the Court of Claims, AUSA Patterson acknowledged prosecutors did have an agreement with Bailey, but that it was an oral agreement. After admitting to such an agreement, Patterson then argued his prosecutors did not have the authority to enter into such agreement between DuBoc’s attorneys and the Justice Department. The Court of Claims denied the Justice Department’s motion to dismiss Bailey’s complaint:
Although (the defendant [US] vociferously asserts that none of the agents of the U.S. who were involved in this case had authority to bind the government to the contract alleged by the plaintiff, it has proffered little evidence to refute the repeated allegations in the plaintiffs complaint that a contract was formed between himself and the government agents who had authority to bind the US. The defendant’s own statement suggests that under the appropriate circumstances, a contract could have been formed
At a later court hearing, attorney Edward Shohat said, "Mr. Bailey told me he had a secret deal with the government that he couldn’t tell me or Mr. DuBoc about." Shohat told the court he was uncomfortable with not having an accounting of the funds. Attorney Shapiro, who had selected Bailey as co-counsel, stated to the court that Bailey had not given him an accounting of DuBoc’s funds.
Dangerous to Have Bailey as Legal Counsel?
Watching this spectacle surely was ironic for DuBoc. He trusted attorneys who promptly sabotaged him and may be the cause of him being in prison for the remainder of his life. Unfortunately, he wasn’t the only client who suffered by having Bailey as legal counsel. The air traffic controllers had Bailey as their legal counsel in 1981 when they conducted an illegal strike, causing most of them to be fired. Patty Hearst, who hired Bailey for her defense, later said that Bailey spent very little time defending her because he was busy writing a book.
Public name-recognition, and the media’s dream-team label given to Bailey and other members of the O.J. Simpson defense team possibly made DuBoc consider Bailey to be competent and responsible. Hoot Gibson, a former TWA airline pilot and friend, stated to me that he frequently appeared as a witness for Bailey, and Bailey was often inebriated and obnoxious. Another pilot friend who appeared several times for Bailey, Gerald Loeb, said that Bailey often displayed the "shakes" experienced by heavy drinkers.
Like A Pack Of Wolves Fighting For The Carcass
The atrocious legal advice and client-sabotage created chaos for DuBoc, and major rifts among government agencies as agents fought over the spoils. A rift arose between federal prosecutors and investigators over who should get the money from DuBoc’s assets. U.S. Customs Service officials requested Judge Paul to appoint a special prosecutor to investigate the unwritten deal between the U.S. Attorney and Bailey-unaware that the last thing Judge Paul wanted was his role in the sordid conspiracy to be publicized any more than it already had been. This was the sixth complaint from Customs officials who accused Patterson and his staff of leading an 18-month-long campaign to discredit Customs agents, and thereby cut them off from DuBoc’s forfeitable assets.
Customs agents and informants sought at least five times to have the Justice Department’s Office of Professional Responsibility (OPR) investigate the U.S. attorney, and each time the request was either denied, or never received a response. Anyone familiar with that division of the Justice Department should have known that instead of ferreting out corruption, the OPR is most famous for covering it up. A summary of Customs’ complaints:
On March 21, 1995, U.S. Customs attaché Paul Beaulieu asked the Office of Professional Responsibility to investigate Patterson’s office, that Patterson was conducting a witch-hunt with the grand jury to discredit Customs agents and their informants. True to form, the Justice Department’s OPR found nothing wrong as it continued its years of coverups.
Dennis Cameron, another attorney representing an informant, wrote a March 26, 1995, letter asking the Justice Department’s Office of Professional Responsibility to investigate the "unprofessional conduct" of the prosecutor.
On August 3, 1995, Beaulieu requested Attorney General Janet Reno to "address this intolerable conduct by the U.S. attorney in Tallahassee," stating that Patterson’s office was seeking revenge because he tried to protect the identity of confidential informants.
On October 26, 1995, Washington attorney Herbert Miller, representing informant Stephen Swanson, requested the Justice Department to review the matter.
The request by Customs to Judge Paul for a special prosecutor accused U.S. Attorney Patterson of violating policy by entering into the verbal deal with Bailey.
DOJ Using Grand Juries and IRS to Discredit Customs Agents
Customs said that Patterson’s office was using federal grand juries and IRS investigations to discredit Customs agents and informants who built the case against DuBoc. Customs also said federal prosecutors knew Bailey was transferring money from DuBoc’s Swiss bank account into his own personal account but did nothing about it until DuBoc reported it to Judge Paul.
Under federal law, government agencies and their informants are entitled to a share of assets that are seized in which they provide original information leading to arrests and seizures. It was therefore important to determine who first provided the information that brought about the arrest. If DuBoc was actually guilty and the court actually had jurisdiction over him, the assets exceeding $100 million would be a windfall for whoever first provided the information that brought about his arrest.
DOJ Exposing Government Agents to Danger
Customs accused Justice Department prosecutors of divulging the identity of two of their confidential informants, putting them in danger of their lives. Customs attaché in Paris, Paul Beaulieu, accused the U.S. Attorney’s office in a March 1995 letter of leading an investigation to "systematically destroy the reputation of several Customs agents and their confidential resources." In this letter, Beaulieu stated that U.S. Attorney Patterson impaneled a federal grand jury in Tallahassee to take testimony to investigate whether Beaulieu and other agents and informants in the DuBoc case were conspiring to defraud the government of DuBoc’s assets.
In opposing the complaints, Justice Department prosecutors claimed the original information relating to DuBoc came from the Drug Enforcement Administration, and only then did the information go to Customs officials in France-or so says DOJ personnel. And surely they would not lie! Patterson’s office challenged the "originality" of the information received from the Paris Customs office and their informant. Patterson claimed that the information was already known by his office. Beaulieu claimed that DuBoc would never have been arrested, and his assets never forfeited to the government, but for the work of Stephen Swanson and his operative.
The information Swanson provided enabled Customs working closely with DEA in Gainesville and the U.S. Attorney’s office in Tallahassee to locate and arrest DuBoc in Hong Kong in March 1994. In my opinion, this investigation is based on the U.S. Attorney’s office and DEA’s almost obsessive desire to take all the credit for the case and be able to claim all the seized assets.
Customs agents and informants claim they built the case against DuBoc and repeatedly complained that U.S. Attorney Michael Patterson and his Tallahassee staff abused the power of the grand jury to keep the drug assets for themselves.
Another slant to the bizarre case. Attorney Dennis Cameron, representing another informant in the case looking to share in the assets, wrote to a Justice Department official (February 21, 1996) about an ongoing RICO investigation (Racketeering Influenced and Corrupt Organizations Act) of his client. He claimed U.S. Attorney Patterson was seeking to discredit his client so as to eliminate any need to share forfeited assets with him.
Judge Condemns Rewards to Customs Agents
An Associated Press article (June 18, 1998) showed objection to the practice of rewarding Customs agents for seizures when such work was part of their duties for which they were paid. The practice likened government agents to bounty hunters. The article said in part:
A federal judge says the Customs Service’s policy of rewarding some inspectors who make drug seizures is wrong and potentially dangerous.... "Such a program creates perverse law enforcement incentives that have an unduly dangerous propensity to encourage unreasonable searches and detentions."
Five Years in Prison Without A Decision
In 1999, DuBoc had been in prison five years without being sentenced. He had provided valuable assistance in several major drug cases and had voluntarily forfeited to the United States over $100 million in assets. He had expected to be released. Instead, he faces life in prison.
New Legal Counsel Discovered Lack of Evidence
After being imprisoned for five years, having been subjected to incredible and scandalous sabotage of his legal rights by government agents conspiring with his own attorneys, DuBoc again changed legal counsel, hiring Tallahassee attorney William E. Bubsey. Bubsey did what the first group of attorneys never did; he investigated the evidence upon which the Justice Department predicated their charges. He quickly discovered evidence contradicting the prosecutor’s charges, revealing DuBoc’s innocence. Bubsey obtained an affidavit from Matthew Martenyi stating that the group met twice with DuBoc in Long Beach and once in San Francisco and that DuBoc refused to ship the marijuana that DOJ prosecutors claimed he agreed to do.
DuBoc’s Many Legal Defenses
Considerable evidence and government misconduct strongly calls for DuBoc’s release:
Absence of evidence showing DuBoc shipped marijuana into the State of Florida.
Conspiracy between DuBoc’s attorneys, the Department of Justice prosecutors, and the judge, constituting criminal acts and sabotage of rights and protections under the laws and Constitution of the United States.
Judge’s misconduct, secretly assisting in the sabotage of DuBoc’s defenses by approving the secret agreement between DuBoc’s legal counsel and the Justice Department prosecutor.
Withholding exculpatory evidence, a violation of the Brady rule.
Statutory defense against paying witnesses for testimony. Title 18 USC Section 201(c)(2) clearly prohibits the payment of any money or other compensation to obtain a person’s testimony. The wording is very clear. DOJ prosecutors constantly violate it, and in that way send innocent people to prison-sometimes for life.
Violated federal case law protecting a defendant’s right to a conflict-free legal counsel. In Lopez v. Sculley, 58 F.3d 38 (2nd Cir. 1995), the court held that a defendant was entitled to a conflict-free counsel prior to and including sentencing. Justice Department attorneys entered into a secret contractual agreement with DuBoc’s legal counsels and threatened them with loss of all fees if they did not cause their client to plead guilty-regardless of guilt or innocence. This is undoubtedly one of the most gregarious examples of attorney fraud, attorney misconduct, attorney malpractice, and obviously, not conflict-free.
Ineffective legal representation.
Fraudulent legal representation.
Corrupt violation of DuBoc’s legal and constitutional rights.
Absence of venue.
Motion to Withdraw Guilty Plea
Bubsey filed a motion (April 8, 1998) to withdraw DuBoc’s guilty plea, as provided in federal law. His brief was well done but omitted any reference to one of DuBoc’s key defenses: the conspiracy agreement between the Department of Justice, DuBoc’s initial attorneys, and the judge’s involvement in it. If Bubsey had raised that point, federal judges would thereafter retaliate against him, rendering unfavorable decisions against his clients and adversely affect Bubsey’s livelihood. Bubsey stated in his motion:
To the extent that there was a money laundering charge, there is absolutely no nexus or evidence to support jurisdiction and venue in the Northern District of Florida. (Thereby requiring dismissal of the charges See, United States v. Kramer, 73 F.3d 1067, 1072 (11th Cir. 1996)). DuBoc’s change of plea [to guilty] was not knowing and voluntary, as he relied upon the fraudulent representation of his attorney, F. Lee Bailey, who had a secret contract with the prosecutor to violate DuBoc’s civil and constitutional rights. Federal Rules of Criminal Procedure Rule 32(e) Plea Withdrawal states:
If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 USC Section 2255.
The record of evidence in this case amply supports the proposition Bailey was grossly ineffective in his representation of DuBoc and clearly labored under the most severe conflict of interest. The Court will recall that the United States vehemently argued that Bailey sold his client out for his own interests.
Absence of Venue
Federal Rules of Criminal Procedure rule 58(c)(2) requires that the venue be proper, that a criminal complaint be filed where some part of the alleged offense occurred. This did not exist in DuBoc’s case because there was no evidence of any federal offenses occurring in Florida. That rule states in part: "A defendant who is arrested, held, or present in a district other than that in which the indictment [or] information is pending against that defendant may state in writing a wish to waive venue and trial in the district in which the proceeding is pending." DuBoc never waived venue in writing.
Motion To Vacate Forfeitures
Bubsey simultaneously filed a motion to vacate the forfeitures, stating in part:
Mr. DuBoc’s attorneys, in essence conspiring with the federal government, have manipulated the government and more importantly, the defendant, into unwittingly turning over the majority of his assets without regard to whether the assets were tainted, untainted, or drug-related, directly or indirectly. Once the transfer was completed, the defendant was again double crossed by the government, in the form of the government’s initiation of forfeiture actions, completely inconsistent with the terms and spirit of the Plea Agreement, and inconsistent with the understanding of the parties.
The United States Department of Justice has essentially agreed with Bailey’s position that the U.S. Attorney for the Northern District of Florida did, in fact, enter into an agreement to employ Bailey, but that the local office did not have the requisite authority to enter into or bind the United States to the agreement.
Judicial Complicity Insured Rejection
Bubsey’s motions to vacate the forfeitures and withdraw the guilty plea were bound to fail, regardless of their merit. The motions had to be acted upon by Judge Maurice Paul-who was a key party to the highly explosive conspiracy and secret agreement. To now allow DuBoc to withdraw his guilty plea, and to reverse the forfeitures, would expose the judge’s misconduct, including that of the Justice Department attorneys, and reveal corruption in the judicial system, and play havoc with the $100 million in worldwide assets that were taken from DuBoc. The motions were denied.
Compounding Judicial Arrogance
In a further act of judicial arrogance, Judge Paul granted the Justice Department’s motion holding that DuBoc did not cooperate and thereby he was not to be shown any favorable consideration in sentencing. That meant life in prison!
DuBoc had pleaded guilty to charges that the facts showed he was not guilty of. He acted as witness in many drug cases that brought about the arrest of many high-level drug traffickers. He conveyed over $100 million of worldwide assets to the United States to which they were not entitled.
Seeking Perjured Testimony from Prisoners
DuBoc’s brother-in-law, Joe Shelesky, told me in January 1999, that prisoners incarcerated with DuBoc at the Federal Correctional Center in Tallahassee were being prompted by the prosecutors to provide perjured testimony against DuBoc. Shelesky stated they were offered release from prison and other benefits if they testified that DuBoc and his Tallahassee attorney, Penelope E. Shelfer, planned to offer Judge Paul a $1 million bribe if he ordered DuBoc released.
One thing was surely obvious to DuBoc; Judge Paul was so deeply implicated in the conspiracy with Justice Department prosecutors that the last thing the judge would do is take a bribe. The judicial and Justice Department misconduct in DuBoc’s case added to the massive amount of evidence showing this misconduct to be the culture in these government offices. It was necessary for the Justice Department and the judge to divert attention from their actions by fabricating charges against DuBoc.
For Those Having no Sympathy for A Marijuana Supplier
For those who have no sympathy for DuBoc because of having transported marijuana in other parts of the world, consider the following:
If it wasn’t for the insatiable demands of U.S. drug users, there would be no need for people to transport drugs, and there would be no money to pay for such practices.
More guilty of any federal offenses would be those people in government, especially the CIA, who have-while holding positions of trust-played a direct or indirect role in smuggling drugs into the United States.
Close behind, we have those who aid and abet the drug trafficking, including Justice Department personnel and other government agencies who knew about the government-related drug trafficking and covered up for it. Those involved in the complicity of coverup would also include members of Congress, federal judges, and much of the broadcast and print media.
Just because it may be illegal in the United States to engage in transportation of drugs, that doesn’t make it illegal, either by law or practice in some other country. Many people in the United States have sought to legalize drug use and transportation. If the United States has the right to legalize drug use, why doesn’t another country have the same right, either as shown by their laws, or their tacit approval of such activities.
Like any other person, DuBoc was entitled to the substantive and procedural protection of the laws and Constitution of the United States. If someone such as O.J. Simpson can go scot-free for the brutal murder of two defenseless people, DuBoc certainly doesn’t deserve life in prison.