A former federal judge, now a champion of crime victims’ rights, last week called for a U.S. House of Representatives panel to ask the U.S. Attorney’s Office in Brooklyn to explain why it “appears” to be engaging in “on-going violations of important federal crime victims’ statutes.”
In written testimony delivered to a unit of the House Judiciary Committee, former U.S. Judge Paul G. Cassell, a professor at the University of Utah Law School, cited the Eastern District’s handling of cooperator Felix Sater’s guilty plea to having committed a $40 million stock swindle in 1998 as a prime example of why the enactment of a constitutional amendment protecting victims’ rights is necessary.
“Sadly,” he wrote, it is “my conclusion” that the Eastern District’s handling of the case, and judge’s granting of its request to shroud the plea in secrecy, “is hindering the public and this Subcommittee from learning how crime victims were treated in this case.” The testimony was submitted to the Judiciary’s Subcommittee on Constitutional law.
Cassell further wrote that the office’s “willingness to ignore” federal crime victims’ statutes has a “business as usual feel to it, suggesting that many other victims are having their rights violated through the simple expedient of hiding the case.” Click here for Cassell’s testimony
Robert Nardozo, a spokesman for the U.S. Attorney’s Office, said it would have no comment.
Sater’s 2009 guilty plea remained under seal until mid-March when Eastern District Judge I. Leo Glasser, who presided over Sater’s criminal case, ordered it to be made public. Click here to read story in New York Law Journal.
The newly available plea made indisputable what was already widely known. Sater had been rewarded for his 11 years of cooperation with a lenient sentence—five years probation and a $25,000 fine. More significantly for Cassell, the sentence made no reference to restitution. Federal statutes entitle victims of stock fraud to mandatory restitution and the right to notice of, and to participate in, sentencing proceedings. Neither occurred when Sater was sentenced, according to the now public court records.
Cassell submitted his statement in response to a written request from the Constitution subcommittee’s chairman, Trent Franks (R-Arizona). In 2011, Cassell worked pro bono on the restitution section of a brief that Oberlander filed in the Second Circuit. He has not performed any legal work for Oberlander since, said Richard Lerner, Oberlander’s attorney.
The secrecy surrounding the Sater’s plea had been hotly contested by Long Island lawyer Frederick M. Oberlander, who in 2010 filed a derivative action in the Southern District of New York, claiming that Sater had used the secrecy afforded by the court’s secrecy regimen to perpetuate a $500 million real estate fraud.
That lawsuit, Kriss et al. v. Bayrock Group, 10-cv-3959, alleges that Sater used court-approved secrecy to hide his criminal past from investors in a real estate company he became associated with, the Bayrock Group. Bayrock entered into projects, using Donald Trump’s name, in Fort Lauderdale and SoHo. Sater’s role in Bayrock Group is somewhat murky though the Miami Herald last summer reported that he was “a high executive.”
The filing of the Kriss lawsuit, which accused Sater and Bayrock of engaging in a civil racketeering fraud, stirred up a hornet’s nest. The complaint, which was ordered sealed within four days, contained excerpts from Sater’s pre-sentencing report. According to Oberlander’s papers filed in the U.S. Supreme Court, those portions of the report showed that Sater’s probation officer avoided alerting Bayrock about Sater’s criminal past.
Presentence reports are non-public documents and are not included in the federal court’s system for making case files available to the public on the Internet.
Glasser, acting on an application from Sater’s lawyers, enjoined Oberlander and Lerner, from revealing the contents of the pre-sentence report. That order was affirmed by the Second Circuit in 2011 and Oberlander’s petition for certiorari was denied last month.
While the certiorari petition was pending, a federal judge in Brooklyn ordered the U.S. Attorney’s Office in Syracuse to investigate whether Oberlander and Lerner should be held in criminal contempt. On Friday, April 26, the Northern District office asked that its time to file a report on the investigation be extended.
The Kriss lawsuit meanwhile is moving forward.