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Weekend Law: Superstar Lawyer on Trial, Mangione's Outburst & Mandatory Detention · Bloomberg Law

0:02
Speaker 1: This is Bloomberg Law with June Grosseo from Bloomberg Radio.
0:09
Speaker 2: And his face lost all expression. He said, if you're
0:12
Speaker 2: gonna play the game.
0:13
Speaker 1: Boy, you gotta learn to please right.
0:17
Speaker 2: You got to do when the home no, when the
0:21
Speaker 2: fold no, when the law.
0:26
Speaker 3: No.
0:27
Speaker 2: Rhyme.
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Speaker 4: Superstar Supreme Court lawyer Tom Goldstein took the stand at
0:32
Speaker 4: his criminal tax trial, going all in with extraordinarily high stakes,
0:38
Speaker 4: even higher than those at the multimillion dollar poker games
0:42
Speaker 4: he played in and gambling is at the center of
0:45
Speaker 4: the trial where Goldstein is accused of misreporting millions of
0:50
Speaker 4: dollars in poker wins. He lived a double life as
0:53
Speaker 4: a member of the elite Supreme Court bar who argued
0:56
Speaker 4: more than forty cases before the High Court, and as
1:00
Speaker 4: a high stakes poker player who won about twenty six
1:03
Speaker 4: million dollars in one series of matches and once walked
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Speaker 4: through US Customs carrying a bag of nearly a million
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Speaker 4: dollars in cash. Goldstein knows the odds and risks of
1:15
Speaker 4: taking the stand and opening himself up to cross examination,
1:20
Speaker 4: but he's gambling that the jury will believe him and
1:23
Speaker 4: acquit him. Joining me is Bloomberg Law. Senior reporter Holly Marker,
1:27
Speaker 4: who's covering the Goldstein trial. Holly start by telling us
1:32
Speaker 4: about how shocked the legal world was when Goldstein was indicted.
1:37
Speaker 5: Tom Goldstein is a legal rock star.
1:39
Speaker 1: He's argued more than forty cases before the US Supreme Court,
1:43
Speaker 1: and he got there via a really unlikely route. Most
1:47
Speaker 1: people who make it to the Supreme Court who are
1:50
Speaker 1: that kind of elite lawyer also went to elite law
1:54
Speaker 1: schools and they clerked for Supreme Court justices and so on,
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Speaker 1: And he sort of got there through pure hustle. He
2:00
Speaker 1: would identify cases that he thought were likely to get
2:03
Speaker 1: taken up by Scotus, and he would cold call the
2:07
Speaker 1: people involved in the case and sort of pitch himself
2:09
Speaker 1: as the best person to take it up. And that's
2:11
Speaker 1: kind of how he built his career. He was also
2:14
Speaker 1: the co founder of the same called Scotus Blog, which
2:16
Speaker 1: is a website that sort of covers all things Supreme
2:20
Speaker 1: Court and became a really critical resource for people in
2:24
Speaker 1: the legal world. So, when he was indicted last year
2:29
Speaker 1: on twenty two counts, a combination of tax charges and
2:33
Speaker 1: allegations that he made a false statement in connection with
2:37
Speaker 1: loan applications.
2:38
Speaker 5: People were shocked.
2:39
Speaker 1: Those charges have been winnowed since they initially dropped. He
2:43
Speaker 1: is presently on trial for one count of tax evasion
2:46
Speaker 1: for twenty sixteen, eight counts of aiding and assisting in
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Speaker 1: a preparation of false and fraudulent tax returns, four counts
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Speaker 1: of full failure to pay taxes, and three counts of
2:56
Speaker 1: making a false statement on a loan application.
2:58
Speaker 4: How did he get into this world of high stakes
3:01
Speaker 4: poker and how much money did he make from playing?
3:04
Speaker 1: So it had an interest in gambling, like he would
3:07
Speaker 1: play poker with people in his law firm. You know,
3:11
Speaker 1: he represented people in the poker world. You know, one
3:14
Speaker 1: of his clients has featured heavily in this trial. But
3:17
Speaker 1: it wasn't really until twenty sixteen until he started playing
3:21
Speaker 1: these like massive multi million dollar hands and that's sort
3:26
Speaker 1: of when things surfaced for him.
3:28
Speaker 5: And at trial, since he's taken the stand.
3:30
Speaker 1: It came out that in twenty fourteen he had a
3:34
Speaker 1: pulmonary embolism and almost died. And after that happened, and
3:38
Speaker 1: I'm paraphrasing here, but he sort of felt like I've
3:40
Speaker 1: got to seize life.
3:41
Speaker 5: And he went on to say.
3:43
Speaker 1: I may have overcooked that a bit, but that's sort
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Speaker 1: of what led to his gambling in his sort of
3:48
Speaker 1: peak year in twenty sixteen, although it continued for years
3:51
Speaker 1: after that with him mostly losing.
3:54
Speaker 5: But to answer your question, he.
3:56
Speaker 1: Played Alec Goriz in twenty sixteen and won around twenty
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Speaker 1: six million from him in a series of matches. To
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Speaker 1: give you like a rough sense of the kind of
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Speaker 1: dollar figures we're talking about.
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Speaker 4: The prosecution presented more than a dozen witnesses, from irs
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Speaker 4: agents and accountants to professional poker players and real estate moguls,
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Speaker 4: and even one movie star, Toby maguire, who were the
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Speaker 4: most important witnesses for the prosecution.
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Speaker 1: I think the most important witnesses in this trial for
4:30
Speaker 1: the government were likely the accountants at Goldstein's outside accounting firm.
4:36
Speaker 1: His defense, you know, there were errors on his tax returns.
4:40
Speaker 1: He's not disputing that there were transactions that should have
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Speaker 1: been characterized differently, either should have been characterized as income
4:47
Speaker 1: or shouldn't have been deducted as business expenses.
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Speaker 5: And there's only a handful of.
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Speaker 1: Them, eight to be exact, and he's saying, look, yes,
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Speaker 1: those should have been characterized differently, but it wasn't my fault.
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Speaker 1: I was relying on my accountants and my firm managers.
5:02
Speaker 1: If they had any questions, I would answer them. I
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Speaker 1: would answer them honestly and to the best of my ability.
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Speaker 5: And they were the ones dropping the ball on this.
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Speaker 1: So in that respect, getting the accountants on the stand
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Speaker 1: to sort of explain what their process was and the
5:17
Speaker 1: efforts that they made to get his returns right was
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Speaker 1: really important I think for the government. But I will
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Speaker 1: say that the cross examination of both of the accountants
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Speaker 1: was super effective.
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Speaker 5: They highlighted mistakes.
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Speaker 1: That the accountants made that hurt gold Scene that he
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Speaker 1: didn't catch in terms of his tax liabilities, and they
5:37
Speaker 1: didn't follow up and ask specific questions. Gold Scene's lead
5:41
Speaker 1: defense layer just sort of took it apart.
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Speaker 4: You know, I have to ask you about Toby McGuire's testimony.
5:47
Speaker 4: He's known as a high stakes poker player.
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Speaker 1: Toby McGuire is apparently a very avid poker player and
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Speaker 1: also a seemingly very good one. When he stepped off
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Speaker 1: the stand, he left you the impression that he could
6:01
Speaker 1: have made more money playing poker than he made playing
6:04
Speaker 1: Spider Man. He took the stand to testify about a
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Speaker 1: five hundred thousand dollars legal fee that he owed to
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Speaker 1: gold Scene after gold Steine helped McGuire recover significant gambling
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Speaker 1: debt from Andy Beal, who's a billionaire in Texas. So
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Speaker 1: he won fifteen point six million dollars in poker, about
6:25
Speaker 1: half of that was his bill.
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Speaker 5: Didn't want to pay, so he hires gold Scene.
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Speaker 1: Gold Stine does the job, gets a successful result. McGuire
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Speaker 1: gets paid, and gold Stein has this five hundred thousand
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Speaker 1: dollar fee. But instead of having McGuire send the fee
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Speaker 1: to him, he had McGuire send the money directly to
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Speaker 1: someone to whom Goldstein owned a gambling debt. So the
6:47
Speaker 1: idea was to have him come in and testify about
6:49
Speaker 1: this transaction that was ultimately misclassified. But again, you know,
6:53
Speaker 1: gold Scene isn't disputing that certain transactions were misclassified. What
6:57
Speaker 1: he's saying is the way that it was classic. The
7:00
Speaker 1: fin on my tax return is not my fault. It
7:02
Speaker 1: was an error, but it wasn't an intentional error.
7:04
Speaker 4: And whether or not he had intent is key in
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Speaker 4: this case. So Goldstein knows his way around a courtroom, obviously,
7:11
Speaker 4: but getting on the stand yourself is another ballgame. What
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Speaker 4: was his demeanor like, he was.
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Speaker 1: Calm, collected, self deprecating at times. He seemed very well prepared.
7:24
Speaker 1: He didn't sort of over explain. He seemed sincere. I
7:28
Speaker 1: think the big risk in a lot of these cases
7:31
Speaker 1: with defendants taking the stand is the risk that they'll
7:33
Speaker 1: come across as arrogant, and he didn't come across as
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Speaker 1: arrogant at all. He did a lot to bolster the
7:40
Speaker 1: defense's themes that they had been teasing out while crossing
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Speaker 1: the government's witnesses. And one of the most important things
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Speaker 1: I think he did on the stand was sort of
7:48
Speaker 1: tied together and fill in the gaps in his gambling.
7:52
Speaker 1: And when it all was said and done, he actually
7:55
Speaker 1: said that he should not have reported any gambling winnings
8:00
Speaker 1: on his twenty sixteen taxes. He said that he in
8:03
Speaker 1: fact overpaid, which sort of upsets obviously the government's twenty
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Speaker 1: sixteen tax evasion theory.
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Speaker 5: Altogether.
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Speaker 4: The risks always come on the cross Was the government
8:14
Speaker 4: able to score any points on the cross examination.
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Speaker 1: So on cross the government started was sort of establishing
8:22
Speaker 1: that he has free will. Essentially, they were trying to
8:26
Speaker 1: get him to acknowledge that he made all of the
8:28
Speaker 1: choices that led to these mistakes, and that he was
8:31
Speaker 1: fully capable, for example, of telling his for managers about
8:37
Speaker 1: when a distribution was personal and shouldn't have counted as
8:40
Speaker 1: a business expense, but failed to do so, and they
8:43
Speaker 1: sort of framed that as his choice. They then lifted
8:47
Speaker 1: very heavily into his spending and sort of history of
8:51
Speaker 1: being dishonest with various people in his life. One thing
8:54
Speaker 1: that did come out on his cross examination that I
8:57
Speaker 1: think the defense had been working really hard to avoid
9:00
Speaker 1: was all of these allegations about infidelity.
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Speaker 5: The prosecutor essentially.
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Speaker 1: Asked, you know, didn't you lie to your wife about
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Speaker 1: your many, many, many affairs, And he avoided answering the
9:10
Speaker 1: question by saying, you know, that would require me to
9:13
Speaker 1: talk about conversations I had with my wife, so effectively
9:16
Speaker 1: invoking marital privilege, and the prosecution moved on. But of course,
9:20
Speaker 1: now that's out there, and that, you know, could sully
9:22
Speaker 1: his credibility with jurors a bit. Although you know, I'm
9:26
Speaker 1: not sure that infidelity packs the same punch that it did,
9:29
Speaker 1: you know, thirty years ago, but still, of course that
9:31
Speaker 1: cuts against his credibility. He also acknowledged other sort of
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Speaker 1: misleading things. He'd done, or wies that he'd told, but
9:39
Speaker 1: not all of them are that nefarious. So one of
9:42
Speaker 1: the lies that the prosecution drew out he'd asked Paul
9:46
Speaker 1: Napoli to invest five hundred thousand dollars in his poker
9:50
Speaker 1: matches against Bob Sifi.
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Speaker 5: He'd like pumped himself up. He's like, I got this, I'm.
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Speaker 2: Going to win. You know.
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Speaker 1: He sort of really sold himself when he solicited that investment,
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Speaker 1: and then he just lost and lost and lost. But
10:03
Speaker 1: instead of telling Paul Napoli that he lost, he instead
10:07
Speaker 1: claimed that he won and gave him the five hundred
10:10
Speaker 1: thousand dollars investment back, plus some purported winnings, so just
10:14
Speaker 1: out of his own pocket. So that was a lie
10:16
Speaker 1: that the prosecution elicited, but it's a lie that sort
10:20
Speaker 1: of harmed him or that it harmed anybody else. The
10:22
Speaker 1: other thing about the dishonesty is, other than the infidelity,
10:27
Speaker 1: all of this was already in evidence.
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Speaker 5: Jurors had already heard.
10:30
Speaker 1: About sort of points at which he'd been dishonest over
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Speaker 1: the last ten years.
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Speaker 5: So I'm not sure that it was quite.
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Speaker 1: As effective as it would have been if if that
10:39
Speaker 1: had been sort of the first time they'd heard all
10:41
Speaker 1: of this.
10:41
Speaker 4: It's often telling when a witness's demeanor changes on cross.
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Speaker 4: Did Goldstein's demeanor change?
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Speaker 1: He got his back up a little bit, but not
10:52
Speaker 1: in a way that I thought was disproportionate to the
10:56
Speaker 1: questions he was feeling.
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Speaker 5: He maintained his school. I thought he did generally a
11:00
Speaker 5: good job.
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Speaker 4: So do you think all in all Goldstein helped his
11:04
Speaker 4: case by testifying, or hurt his case by testifying.
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Speaker 1: He did no violence to his case, and it may
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Speaker 1: have helped him, And I really do, actually, unbalanced think
11:14
Speaker 1: it did help him because the jurors needed somebody to
11:17
Speaker 1: fill in the gaps sort of, to explain how all
11:20
Speaker 1: the gambling worked, and to explained how they would swap debt.
11:24
Speaker 1: They would, you know, hold on to winnings for somebody
11:27
Speaker 1: else for a while. You know, they would redirect payments from,
11:30
Speaker 1: you know, somebody they had won from to pay a
11:33
Speaker 1: debt that they owed somebody else. And he was able
11:35
Speaker 1: to say, look, here's where all of the money went,
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Speaker 1: Here's who it belonged to. Hear who the investors were,
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Speaker 1: Here's who I paid out, and here's what I took
11:42
Speaker 1: home At the end of the day, and there was
11:44
Speaker 1: really nobody else that was going to be able to
11:46
Speaker 1: do that but him. And the other thing is he
11:48
Speaker 1: brought receipts. He has contemporaneous text messages. For example, the
11:52
Speaker 1: bag of cash turns out it was alone, just so
11:55
Speaker 1: he claims. And he's got contemporaneous text messages that reflect
11:59
Speaker 1: that that was one loan he'd received and he was
12:01
Speaker 1: going to receive the second loan. So basically borrowed like
12:04
Speaker 1: a total of two million from one of his former
12:06
Speaker 1: clients and fellow gamblers. As you know, he was able
12:09
Speaker 1: to testify about things that they would have otherwise never
12:11
Speaker 1: been able to get in that I think the jury
12:13
Speaker 1: really needed to hear.
12:14
Speaker 4: So it seems like the jury will get the case
12:16
Speaker 4: next week.
12:17
Speaker 1: On Tuesday, the defense has a few more witnesses and
12:20
Speaker 1: tends to call.
12:21
Speaker 5: Among them is.
12:22
Speaker 1: The lead case agent and the government's case. That's interesting
12:25
Speaker 1: because for lots of reasons, but in part because the
12:28
Speaker 1: government did not call this agent in its case.
12:30
Speaker 4: And she Holly, you'll have to tell us on Tuesday
12:33
Speaker 4: what the government might have been trying to hide. Thanks
12:36
Speaker 4: for taking us inside the courtroom. That's Bloomberg Law, Senior reporter,
12:40
Speaker 4: Holly Barker coming up next. Luigi Manngioni has an outburst
12:45
Speaker 4: in court after a state judge set the trial date
12:48
Speaker 4: for one of his two trials. I'm June Grosso and
12:51
Speaker 4: you're listening to Bloomberg arge.
12:54
Speaker 5: Is the time of lenders?
12:55
Speaker 6: University and old and laws or not?
13:00
Speaker 5: Guns not.
13:05
Speaker 4: Luigi Mangioni pleaded not guilty to murdering United Healthcare CEO
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Speaker 4: Brian Thompson in December of twenty twenty four. The public
13:15
Speaker 4: hasn't heard much else from Mangoni until his outburst after
13:19
Speaker 4: a tense hearing setting the date for his state murder trial.
13:23
Speaker 4: As he was let out of the courtroom, Mangioni shouted,
13:26
Speaker 4: it's the same trial twice. One plus one is two
13:31
Speaker 4: double jeopardy by any common sense definition, and state and
13:35
Speaker 4: federal prosecutors have been engaged in a virtual tug of
13:40
Speaker 4: war over who will try Mangioni first, and even the
13:44
Speaker 4: judges seem to be jockeying for position, with the state
13:48
Speaker 4: judge setting a trial date of June eighth only after
13:52
Speaker 4: the federal judge set a trial date of September eighth.
13:56
Speaker 4: My guess, his former federal prosecutor Robert Mintz a part
14:00
Speaker 4: at McCarter and English Bob. The state prosecutors and the
14:03
Speaker 4: federal prosecutors have been fighting over who gets to bring
14:07
Speaker 4: Mangione to trial first. Isn't that something that's usually worked
14:12
Speaker 4: out beforehand by the prosecutors.
14:15
Speaker 7: Generally, prosecutors do try to work together, and what they
14:19
Speaker 7: do is they look at the federal case and the
14:21
Speaker 7: charges that are brought there, they look at the state
14:24
Speaker 7: case and the charges that are brought there, and they
14:27
Speaker 7: make a decision objectively as to which office as the
14:32
Speaker 7: stronger case and the higher likelihood of conviction. So, in
14:35
Speaker 7: many cases, the state charges will have slightly different elements
14:39
Speaker 7: than the federal charges, and the penalties may be different,
14:42
Speaker 7: and so prosecutors will essentially agree which is the strongest
14:47
Speaker 7: case and lead with that. In this case, there seems
14:50
Speaker 7: to be no cooperation between the federal government and the
14:53
Speaker 7: Manhattan DA's office, and there is a virtual tug of
14:56
Speaker 7: war between the two, a battle as to which case
15:00
Speaker 7: is going to be tried first. We even saw at
15:03
Speaker 7: a hearing before the state court judge, the judge make
15:06
Speaker 7: a very unusual comment saying that US prosecutors had essentially
15:11
Speaker 7: reneged on an agreement to let the state trial proceed first.
15:15
Speaker 7: So we're seeing here a very unusual situation where the
15:18
Speaker 7: federal judge has set the trial date for September eighth,
15:22
Speaker 7: which has prompted the state court judge to set a
15:25
Speaker 7: June eighth trial so that the state court case can
15:29
Speaker 7: proceed and be completed before the federal case goes to trial.
15:32
Speaker 4: Yeah, aren't the judges also jocking for position a little bit? Here?
15:38
Speaker 4: The federal judge said that she was proceeding as if
15:41
Speaker 4: the federal case was the only case unless one of
15:44
Speaker 4: the parties raised an issue with her, and the state
15:47
Speaker 4: court judge only sets a trial date when it looks
15:50
Speaker 4: like the federal trial may go first. How do judges
15:53
Speaker 4: usually handle it when there are competing trials.
15:57
Speaker 7: Well, just like with prosecutors offices, there is no set
16:02
Speaker 7: process by which state and federal judges must interact with
16:06
Speaker 7: one another in terms of setting trials or anything else.
16:09
Speaker 7: It's just usually a pattern in practice that there was
16:12
Speaker 7: some degree of cooperation and some understanding as to which
16:16
Speaker 7: case should proceed first. Here we saw a case where
16:19
Speaker 7: the state made the arrest first and their first appearance
16:23
Speaker 7: was in state court. But then the case got somewhat
16:26
Speaker 7: bogged down in state court, which has slowed that process,
16:29
Speaker 7: and in fact, there was a hearing in December, an
16:32
Speaker 7: important hearing regarding the exclusion of certain key evidence in
16:37
Speaker 7: the case. State prosecutors had argued that evidence from the
16:42
Speaker 7: backpack that was seized by police when mister Mangioni was
16:45
Speaker 7: arrested at the McDonald's in Altoona should be admitted into evidence.
16:50
Speaker 7: It includes some key evidence including a nine millimeter handgun,
16:54
Speaker 7: a silencer, a loaded gun magazine, and a diary, which,
16:59
Speaker 7: according to state prosecutors, include some very incriminating statements made
17:04
Speaker 7: by mister Mangioni, including a comment that Brian Thompson quote
17:09
Speaker 7: had it coming. So that's all very critical evidence to prosecutors,
17:13
Speaker 7: and there was an extended hearing in December as to
17:15
Speaker 7: whether or not that evidence was going to be admitted
17:18
Speaker 7: into the state trial. The trial judge expects to rule
17:21
Speaker 7: on that decision in May, so the trial judge is
17:25
Speaker 7: taking some time to make what is a very critical
17:27
Speaker 7: decision about what evidence may or may not be admitted
17:31
Speaker 7: in the state court. Interestingly, the very same motion was
17:35
Speaker 7: argued in front of the federal judge and the judge
17:38
Speaker 7: rather expeditiously ruled that all of that evidence will be admitted,
17:43
Speaker 7: denying the defense's argument that the police improperly searched the
17:47
Speaker 7: bag without a warrant. So that case, in some sense.
17:51
Speaker 5: Is teed up and ready to go because that.
17:53
Speaker 7: Critical decision about what evidence may be admitted. The trial
17:57
Speaker 7: has already been decided in federal court, but state court
18:00
Speaker 7: prosecutors are adamant that their case should go first, based
18:04
Speaker 7: on the theory that the New York Police Department investigated
18:07
Speaker 7: the crime and federal prosecutors only became involved two weeks
18:12
Speaker 7: after the murder. They say that they have a greater
18:15
Speaker 7: stake in the case, and in fact, it's only the
18:18
Speaker 7: state court case in which murder is being charged. It's
18:22
Speaker 7: second degree murder. The federal charges are stalking charges, which
18:26
Speaker 7: carry a serious penalty because as a result of the
18:30
Speaker 7: stalking a death occurred, but the murder charges are only
18:34
Speaker 7: the state court charges, and so state court prosecutors are
18:37
Speaker 7: saying that the case should be tried in state court first,
18:40
Speaker 7: and that federal prosecutors should try the case only after
18:43
Speaker 7: the Manhattan Diie's office completes their prosecution.
18:47
Speaker 4: Mangioni had an outburst in court saying this is double
18:51
Speaker 4: jeopardy trying him twice. And the average person might look
18:55
Speaker 4: at this and say, he's accused of committing one crime.
19:00
Speaker 4: Are both state and federal prosecutors trying him for that crime?
19:04
Speaker 4: So tell us about the law of double jeopardy and
19:07
Speaker 4: why it just isn't that simple.
19:09
Speaker 7: Yeah, double jeopardy is a nuanced concept in the law,
19:14
Speaker 7: although it does have a common sense understanding. Basically, the
19:18
Speaker 7: Fifth Amendment precludes a person from being prosecuted twice for
19:22
Speaker 7: the same offense, but there are some exceptions, one of
19:26
Speaker 7: them being separate sovereigns. So, for example, if the federal
19:30
Speaker 7: government and the state government want to prosecute the same
19:33
Speaker 7: defendants for the same act, often that has been permitted.
19:37
Speaker 5: If you go back to the days of the civil.
19:38
Speaker 7: Rights movement, you may remember instances where a white defendant
19:43
Speaker 7: was tried for the murder of a black person and
19:46
Speaker 7: acquitted in state court, and then we saw federal prosecutors
19:49
Speaker 7: come in and essentially tried the case again, alleging civil
19:53
Speaker 7: rights violations in federal court and often could get convictions
19:57
Speaker 7: in federal court when state court convictions were are not
20:00
Speaker 7: possible due to the makeup of the jury pool. So
20:04
Speaker 7: there is a long history of cases that are substantially
20:08
Speaker 7: similar being tried by different sovereigns, the federal government and
20:12
Speaker 7: the state government. Interestingly, on the federal level, double jeopardy
20:17
Speaker 7: is controlled by a nineteen thirty two case called Blockbuster
20:20
Speaker 7: versus the United States that basically says that if there
20:23
Speaker 7: are different statutory elements of a crime, then you can
20:28
Speaker 7: be tried.
20:28
Speaker 5: In separate cases.
20:29
Speaker 7: So, in other words, if in state court you're being
20:31
Speaker 7: tried for murder and there's certain elements to convict somebody
20:34
Speaker 7: for murder, but you're being tried in federal court or
20:38
Speaker 7: violations of someone's civil rights, and there are different elements,
20:41
Speaker 7: in other words, prosecutors have to prove different facts in
20:45
Speaker 7: order to gain a conviction, then those are considered separate
20:48
Speaker 7: crimes and do not violate the double jeopardy clause. In
20:51
Speaker 7: New York State, however, the laws of double jeopardy are
20:55
Speaker 7: actually broader than the protection that the federal Constitution applies,
20:59
Speaker 7: and and that's why we're seeing this interesting interplay between
21:03
Speaker 7: the Mangone defense and federal prosecutors saying that they would
21:08
Speaker 7: rather be tried in federal court first, because that will
21:12
Speaker 7: give them at least an argument that the New York
21:15
Speaker 7: state case should be blocked by the double jeopardy clause
21:19
Speaker 7: if the federal case proceeds first, and.
21:21
Speaker 4: Explain why the New York double jeopardy law is better
21:24
Speaker 4: for the defense.
21:25
Speaker 7: The New York State double jeopardy law is broader than
21:29
Speaker 7: the federal constitution because under federal law, it looks at
21:32
Speaker 7: that blockbuster test, which is only looking at elements of
21:35
Speaker 7: a crime, while the New York state law looks at
21:39
Speaker 7: the second prosecution as the same offense or the same
21:42
Speaker 7: criminal transaction, and so it gives defense lawyers a chance
21:46
Speaker 7: to argue that even though the elements may be different,
21:50
Speaker 7: it's really the same offense and the same criminal transaction.
21:54
Speaker 7: In this case, my opinion is it will be an
21:56
Speaker 7: uphill battle for the Mangoy defense team to convince the
21:59
Speaker 7: court that the New York state case is barred by
22:01
Speaker 7: double jeopardy, but there's no question that they will have
22:05
Speaker 7: a better argument if the federal case proceeds first, and
22:08
Speaker 7: then they are in state court arguing that the state
22:11
Speaker 7: prosecution is barred by the prior federal prosecution.
22:15
Speaker 4: The defense attorney complained about the timing of the trials
22:19
Speaker 4: right now, they're three months apart if they go off
22:22
Speaker 4: as scheduled. Karen Friedman Agnifolo told the State Court judge
22:26
Speaker 4: Gregory Caro the defense will not be ready on June eighth,
22:30
Speaker 4: and Judge Caro said be ready. Basically, having to prepare
22:34
Speaker 4: for two trials at once does seem like a lot
22:38
Speaker 4: for one defense team.
22:40
Speaker 7: Generally, judges are pretty solicitous of defense lawyers who say
22:44
Speaker 7: they need additional time to prepare for a trial, because
22:48
Speaker 7: what the judge does not want have happened is they
22:50
Speaker 7: go through an entire trial and ultimately there's a conviction,
22:54
Speaker 7: and then on appeal, the higher court looks at the
22:58
Speaker 7: case and decides that the defense was not provided adequate
23:02
Speaker 7: time to prepare for the defense, and the whole case
23:06
Speaker 7: gets thrown out and has to be retried again. So
23:09
Speaker 7: what we're seeing here is that the federal judge set
23:13
Speaker 7: that September eighth date for the federal trial, and the
23:16
Speaker 7: state court judge then counted backwards from that date in
23:20
Speaker 7: order to set a trial beginning on June eighth, to
23:23
Speaker 7: allow that trial to be completed first. But as you say,
23:26
Speaker 7: the defense has strenuously argued that they will not be
23:30
Speaker 7: ready by June eighth, and that it isn't undue burden
23:33
Speaker 7: for them to have to try the state court case
23:36
Speaker 7: only to then, approximately three weeks later, have to be
23:40
Speaker 7: sitting in federal court ready for another trial. What the
23:43
Speaker 7: defense is arguing is that the defense team is unfairly
23:47
Speaker 7: burdened because they have to prepare for two trials, while
23:50
Speaker 7: prosecutors only have to prepare for one trial each.
23:54
Speaker 4: Also, Bob, you talked before about how the state court
23:57
Speaker 4: judge hasn't decided yet about what whether that critical evidence
24:01
Speaker 4: from the backpack will come in at trial. Judge Caro
24:05
Speaker 4: said he's going to make the decision by May eighteenth,
24:08
Speaker 4: but they're supposed to go to trial just three weeks later.
24:12
Speaker 4: Even though it's unlikely that the judge is going to
24:14
Speaker 4: suppress that critical evidence, shouldn't the defense know that definitively
24:20
Speaker 4: while they're preparing for trial.
24:21
Speaker 7: You're exactly right, and the federal judge has already occurred
24:25
Speaker 7: argument on that very issue and allow that evidence to
24:28
Speaker 7: be admitted, So I think we can expect the state
24:31
Speaker 7: Cork judge to rule the same way. It would be
24:34
Speaker 7: a devastating blow to prosecutors if the state cort judge
24:37
Speaker 7: were to suppress that critical evidence, and it would make
24:40
Speaker 7: it much more difficult for them to gain a conviction.
24:43
Speaker 7: But nonetheless, from the defense standpoint, if you don't know
24:46
Speaker 7: for sure where that evidence is coming in until the
24:49
Speaker 7: middle of May and you've got to begin a trial
24:51
Speaker 7: in the beginning of June, it doesn't give you a
24:54
Speaker 7: lot of time to reset your case and to prepare
24:57
Speaker 7: for trial. And that's exactly what they're going to argue.
25:00
Speaker 7: So it's going to be very interesting to see whether
25:02
Speaker 7: these dates hold. One possible issue that could push the
25:06
Speaker 7: dates back is that if federal prosecutors decide to appeal
25:10
Speaker 7: the federal judges' decision to throw out the death penalty
25:14
Speaker 7: charge in the federal case, the state court judge said
25:17
Speaker 7: that he would likewise move back the start of the
25:21
Speaker 7: state court trial.
25:22
Speaker 4: It wouldn't be the first time or the last that
25:25
Speaker 4: we see delays in trial dates. Thanks so much, Bob.
25:29
Speaker 4: That's Robert Mince of Macarter and English. After widespread criticism
25:34
Speaker 4: of the aggressive tactics by federal immigration agents in Minnesota
25:38
Speaker 4: that left two US citizens dead and spurred massive protests,
25:43
Speaker 4: it came as no surprise. When White House borders are
25:46
Speaker 4: Tom Homan announced the end of the operation, although he
25:50
Speaker 4: was careful to say that ICE will not be backing down.
25:54
Speaker 3: If you're hearing the country legally, you're not an exempt
25:56
Speaker 3: from our immigration loans. If we encounter you, will take
26:00
Speaker 3: appropriate enforcement action. But also say we are backing down
26:04
Speaker 3: from immigration enforcement or the promise of mass deportations, you
26:08
Speaker 3: are simply wrong.
26:09
Speaker 4: What's been missing in all the criticism of federal immigration
26:13
Speaker 4: operations is a policy that affects every non citizen detained
26:17
Speaker 4: by ICE, the Trump Administration's mandatory detention policy. It's a
26:23
Speaker 4: reversal of every other administration's policy for the last thirty years.
26:28
Speaker 4: The Trump administration is locking up all non citizens without
26:33
Speaker 4: hearings indefinitely, even if they've lived in this country for decades.
26:37
Speaker 4: And in a huge win for the administration, the ultra
26:41
Speaker 4: conservative Fifth Circuit Court of Appeals just greenlit that mandatory
26:46
Speaker 4: detention policy. Joining me is Leon Fresco, a partner at
26:50
Speaker 4: Holland and Knight. He was the former head of the
26:52
Speaker 4: Office of Immigration Litigation during the Obama administration. Lee on
26:56
Speaker 4: both the Fifth and the Seventh Circuit had arguments on
27:00
Speaker 4: this policy on the same day. The Fifth Circuit made
27:03
Speaker 4: its decision within days. The Seventh Circuit has yet to
27:06
Speaker 4: make a decision. How big a victory is this decision
27:09
Speaker 4: for the Trump administration.
27:11
Speaker 2: The reason it's a big victory is because most of
27:14
Speaker 2: the detention facilities in the United States are in the
27:17
Speaker 2: Fifth Circuit Texas, Louisiana, and Mississippi. It's a big part
27:22
Speaker 2: of the detention infrastructure of the United States is actually
27:26
Speaker 2: in those locations. And so what the Fifth Circuit held
27:30
Speaker 2: is that if a person crossed the border illegally and
27:35
Speaker 2: entered the United States illegally, if and when the United
27:39
Speaker 2: States government finally apprehends them, whether it's two days later,
27:43
Speaker 2: ten days later, one year later, twenty years later, forty
27:46
Speaker 2: years later, none of that matters. What matters is that
27:50
Speaker 2: they were apprehended when they had crossed the border illegally.
27:54
Speaker 2: And so under the version of the statute that the
27:58
Speaker 2: Trump administration and the Fifth and feel is the correct
28:01
Speaker 2: interpretation of the statue, they say that no matter when
28:04
Speaker 2: you're apprehended, if you've crossed illegally, your intent is you're
28:09
Speaker 2: trying still every day of your life to be admitted
28:13
Speaker 2: into the United States. Legally that this is your goal,
28:16
Speaker 2: because the statue says, if you're seeking admission into the
28:19
Speaker 2: United States, then if you get apprehended, you will be
28:23
Speaker 2: detained indefinitely without bond until we decide whether you win
28:28
Speaker 2: or lose your deportation case. Previously, for the last thirty years,
28:32
Speaker 2: all the administrations prior to this said that at a
28:36
Speaker 2: certain point, after you cross the border, you're no longer
28:39
Speaker 2: seeking admission, you're just here in the country. And that
28:43
Speaker 2: seeking admission is only for people apprehended at or near
28:46
Speaker 2: the border right when they're trying to cross. It's not
28:49
Speaker 2: for people who've been here an extended period of time.
28:52
Speaker 2: Those people are entitled to bond. And so this is
28:57
Speaker 2: a new interpretation that's different than what has occurred in
29:00
Speaker 2: the last thirty years. And so what the Fifth Circuit.
29:03
Speaker 8: Has said is absolutely if someone is in detention in
29:06
Speaker 8: the Fifth Circuit and they cross the border illegally, it
29:09
Speaker 8: does not matter how long they've been in the country,
29:12
Speaker 8: they can be detained without bond until they can finally
29:16
Speaker 8: be deported.
29:17
Speaker 4: And if the Seventh Circuit comes out with a contrary decision,
29:22
Speaker 4: it won't make that much difference because not that many
29:25
Speaker 4: people are held in detention in the territory of the
29:29
Speaker 4: Seventh Circuit.
29:30
Speaker 2: Correct. What's very interesting about this is usually the government
29:34
Speaker 2: is motivated to go to the Supreme Court whenever it's
29:37
Speaker 2: got bad law. But it would be very interesting if
29:40
Speaker 2: what will have to happen is that the Fifth Circuit
29:45
Speaker 2: petitioners the foreign nationals will have to go to the
29:48
Speaker 2: Supreme Court and hope that the Supreme Court takes the case,
29:51
Speaker 2: because usually the Supreme Court only takes these cases for
29:55
Speaker 2: the most part, because the Department of Justice is asking
29:58
Speaker 2: them to take the case. Almost always, when the Department
30:01
Speaker 2: of Justice wants the Supreme Court to take a case,
30:03
Speaker 2: they take it. But the Department of Justice may say,
30:06
Speaker 2: you know what, if we lose in the Seventh Circuit
30:08
Speaker 2: or the Ninth Circuit, no big deal. We'll just put
30:11
Speaker 2: the visa overstate people in detention in those facilities and
30:15
Speaker 2: they can get a bond and it's not a big
30:17
Speaker 2: deal and whatever. But for the people we want to
30:20
Speaker 2: keep in detention as the border crossers, we will put
30:24
Speaker 2: them in detention in the Fifth Circuit, and that way
30:27
Speaker 2: they won't be able to have a habeas petition. And
30:30
Speaker 2: if the Supreme Court never takes this case, then that
30:33
Speaker 2: can't be fixed.
30:34
Speaker 4: And I've heard that when immigrants are released while their
30:37
Speaker 4: case is pending, their odds of winning improve.
30:41
Speaker 2: There's two sort of big dramatic complications when immigration detention
30:46
Speaker 2: is involved. One to the extent that you have family
30:50
Speaker 2: and friends and everybody else. You're separated from them, and
30:53
Speaker 2: you're separated from your source of income, which makes it
30:56
Speaker 2: harder for you to even hire a lawyer in the
30:58
Speaker 2: first place. So you may not have a lawyer because
31:00
Speaker 2: you can't afford a lawyer. That's bad enough, but then
31:03
Speaker 2: it gets even worse, which is, even if you have
31:05
Speaker 2: a lawyer, the lawyer now has to communicate with you
31:09
Speaker 2: basically through ICE, whatever ICE decides to allow you to
31:13
Speaker 2: be able to communicate with your lawyer. So you know,
31:16
Speaker 2: most of these detention facilities are in the middle of nowhere,
31:19
Speaker 2: they're not near any lawyers, and so very few lawyers
31:22
Speaker 2: are driving out or flying hours and hours. Usually what
31:25
Speaker 2: you're having to do is set up conferences. So all
31:29
Speaker 2: of that makes it very very hard. If you're trying
31:31
Speaker 2: to prepare let's say an asylum application, you'd be with
31:34
Speaker 2: your client maybe eight to sixteen hours getting their whole story,
31:39
Speaker 2: documenting it, trying to really set forward a case, and
31:44
Speaker 2: you just don't have the ability to do any of
31:46
Speaker 2: that if your client is in detention. So it basically
31:49
Speaker 2: is like saying, fine, we're gonna let you play basketball,
31:52
Speaker 2: but you can't use your left arm or your right leg.
31:55
Speaker 2: Good luck deals see if you can win this match
31:58
Speaker 2: against Shaquille O'Neill or something like that.
32:02
Speaker 4: Impossible odds there. Leon federal courts have been flooded with
32:06
Speaker 4: habeas petitions to force bond hearings. According to Pro Publica,
32:11
Speaker 4: more than eighteen thousand habeas petitions have been filed in
32:15
Speaker 4: the first thirteen months of Trump's second term, and that's
32:19
Speaker 4: more than we're filed in the last three administrations combined.
32:23
Speaker 4: Will this Fifth Circuit decision stop that flood tuv You're.
32:27
Speaker 2: In the Fifth Circuit, absolutely, because that becomes binding President,
32:30
Speaker 2: So none of those habeas petitions will work in the
32:33
Speaker 2: district courts in Texas, Mississippi, and Louisiana. If you are
32:37
Speaker 2: in other district courts around the country, the problem you
32:40
Speaker 2: have is that that Fifth Circuit decision could be cited
32:43
Speaker 2: as persuasive and maybe the particular district judge who's listening
32:47
Speaker 2: to the case will find it persuasive, and then you'll
32:50
Speaker 2: need to go to the Circuit court and we'll have
32:52
Speaker 2: to see what happens. But the other problem that could
32:55
Speaker 2: happen is the government can try to move you and
32:58
Speaker 2: get your habeas disc and then the court would have
33:01
Speaker 2: to decide whether once to keep behaviors or not. So
33:04
Speaker 2: there's just too much uncertainty and procedural machinations that can
33:08
Speaker 2: occur in all of these cases where at the end
33:11
Speaker 2: of the day, many many of these foreign nationals involved,
33:14
Speaker 2: unless they get some very committed pro bono project, are
33:18
Speaker 2: not going to have the resources to make all of
33:20
Speaker 2: these challenges.
33:21
Speaker 4: It homo sounds like game over.
33:23
Speaker 6: I mean, the only way that this detention issue will
33:27
Speaker 6: change is if the Supreme Court gets involved and says
33:31
Speaker 6: that the Fifth Circuit got it wrong. But if the
33:33
Speaker 6: Fifth Circuit decision stands, then what you will see as
33:36
Speaker 6: the entire detention infrastructure of America moved to the Fifth
33:40
Speaker 6: Circuit and then that will be how it operates.
33:43
Speaker 4: And another problem is that attorneys are struggling just to
33:47
Speaker 4: find their immigrant clients who've been detained because they've often
33:51
Speaker 4: been moved to out of state facilities and then bounced around.
33:55
Speaker 4: An ACLU lawyer called it a game of whack a
33:58
Speaker 4: mole from the beginning. You can't find your clients. If
34:01
Speaker 4: you find them, you can't access them because there are
34:04
Speaker 4: no phones or visitation rooms. And if you do find them,
34:08
Speaker 4: it takes weeks to contact them, and sometimes they're just
34:12
Speaker 4: moved and deported.
34:14
Speaker 2: Absolutely, if you are a representative of a person, a
34:18
Speaker 2: foreign national who's in immigration detention, it's the most challenging
34:22
Speaker 2: time it's ever been to do that, in the sense
34:25
Speaker 2: that when you're a criminal, Let's say, when you're a
34:27
Speaker 2: criminal and you're in detention, you're usually in detention within
34:31
Speaker 2: some reasonable space from your attorney, and a criminal defense
34:35
Speaker 2: can be planned and a criminal defense can be implemented
34:39
Speaker 2: in a court of law. Here, if you lived in
34:43
Speaker 2: I don't know, Houston, or you lived in Atlanta, or
34:46
Speaker 2: you lived in New York, you could be detained in
34:49
Speaker 2: Kansas or in Louisiana or something, and then whatever lawyer
34:54
Speaker 2: you would have procured wouldn't have done you any good,
34:56
Speaker 2: because that lawyer is not going to travel to Louisiana
34:59
Speaker 2: or Mississippi or somewhere else in order to be able
35:03
Speaker 2: to reach you, and then even if they did, you
35:05
Speaker 2: might be moved the next day. And so the question
35:08
Speaker 2: of how you actually conduct the defense when you can't
35:12
Speaker 2: speak to a lawyer is very, very complicated. And this
35:15
Speaker 2: is yet another issue that is going to have to
35:18
Speaker 2: come to some resolution because people are going to start
35:22
Speaker 2: saying that they've had due process violations, and the courts
35:25
Speaker 2: are going to have to decide what is the process
35:27
Speaker 2: that you're due In these situations.
35:30
Speaker 4: Even when ICE does release detainees, judges are finding that
35:36
Speaker 4: they're releasing them in other states without their papers or
35:39
Speaker 4: phones and with just the clothes on their back. So
35:42
Speaker 4: some judges have been issuing very detailed orders. For example,
35:47
Speaker 4: one Minnesota judge said ICE had to release a detainee
35:51
Speaker 4: one in Minnesota, two with all personal documents and belongings
35:56
Speaker 4: such as driver's license, cell phone, three without conditions such
36:00
Speaker 4: ankle monitors or tracking devices, and for with all clothing
36:04
Speaker 4: and outer wear he was wearing at the time of
36:07
Speaker 4: detention or other proper winter attire.
36:10
Speaker 2: And this is not new. This is something I remember
36:12
Speaker 2: from the very first case that I won with a
36:14
Speaker 2: client in detention a long long time ago. I won't
36:17
Speaker 2: date myself. I remember speaking to a senior lawyer and
36:21
Speaker 2: I said, what do I do now, and they said, no,
36:23
Speaker 2: when you win a case and your client is in detention,
36:26
Speaker 2: what ICE does is they just opened the door of
36:28
Speaker 2: the facility and so you better go get them because
36:31
Speaker 2: my client was in the middle of the Everglades and
36:33
Speaker 2: so they either are going to walk from the middle
36:35
Speaker 2: of the Everglades into civilization or somebody has to go
36:38
Speaker 2: get them. This is not new. This has always been
36:41
Speaker 2: that way. That all ICE does is open the door
36:44
Speaker 2: of the detention facility and say, okay, walk out of here.
36:49
Speaker 4: And I thought it was something new. Thanks so much, Leon.
36:52
Speaker 4: That's Leon Fresco of Holland and Night and that's it
36:56
Speaker 4: for this edition of The Bloomberg Law Show. Remember you
36:58
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