Defense Seeks Information on U.S. Probe Into Alleged Threats

, New York Law Journal

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Attorneys for a convicted military contractor are locked in a battle with federal prosecutors over the release of information the government obtained during an eight-month probe into whether the defendant threatened the judge, prosecutors and a defense attorney.

Lawyers for David H. Brooks, sentenced to prison for his role in a $200 million fraud and obstruction of justice case, are seeking the information in a motion to compel that also requests U.S. District Judge Joanna Seybert of the Eastern District of New York to disclose what and when she was told about the alleged threats.

Brooks' attorneys maintain the information is necessary as they consider whether to request Seybert's recusal from further proceedings, including a restitution hearing.

"Without [Brooks'] knowledge, his judge was led by the government to believe that he had made a threat against her, but, in fact, the defendant had done no such thing. A false accusation—one involving the court's own safety­—was conveyed to the court by the government without the defendant or his lawyers knowing anything about it. Depending upon the actual facts, this could give rise to actual bias by the judge against him or create the appearance of bias," Victoria Eiger of Dershowitz, Eiger & Adelson wrote in United States v. Brooks, 06-cr-550.

But prosecutors from the Eastern District U.S. Attorney's Office call the matter a "needless controversy" and argue Brooks is not entitled to the information.

Seybert has been "objectively impartial," the prosecution noted. "When it came to sentencing, the defendant was facing a life sentence and the court declined to impose such a sentence, significantly departing downward from the guidelines' and the government's recommendations," it said.

Brooks was on trial for bilking the body armor manufacturer he founded, DHB Industries Inc. A jury convicted him in September 2010 on conspiracy, mail and wire fraud, securities fraud, and obstruction of justice (NYLJ, Sept. 15, 2010).

In July, prosecutors disclosed to the defense in court papers that from November 2012 to July 2013, the U.S. Marshals Service, the FBI and the Eastern District U.S. attorney investigated allegations that Brooks "discussed physically harming" Seybert, as well as current and former prosecutors on the case and members of the defense.

One of the defense attorneys allegedly targeted was Gerald Shargel of Winston & Strawn. Shargel declined to comment.

In a July 18 letter, prosecutors said Seybert "was made aware of the alleged threat against her as part of the Marshals' standard protocol. …The government does not intend to offer any evidence concerning the alleged threats in this matter."

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