Analysis

Boston Bar Welcomes Shift In Focus Under Biden US Atty

Law360 (November 8, 2020, 5:14 PM EST) -- The tenure of Boston U.S. Attorney Andrew Lelling has been marked by a star-studded case against wealthy parents in the "Varsity Blues" college admissions scandal and a landmark white collar drug prosecution targeting executives of opioid maker Insys Therapeutics.

The presidential race was called Saturday for Joe Biden, though President Donald Trump is fighting the results in court. Barring a successful Trump challenge, the incoming Biden administration will likely name a new U.S. attorney to replace the 2017 Trump appointee. If that happens, defense lawyers and other experts expect a shift away from the more controversial hallmarks of Lelling's office, which include a hard-line approach to sentencing guidelines and immigration enforcement.

The change may be welcomed by both sides of the bar, as the effects of a U.S. Department of Justice that has become increasingly political have filtered down to Boston and left some longtime prosecutors frustrated.

"There have been a number of prosecutions that I think most members of the criminal defense bar have felt troubled by," said Howard Cooper, a founding partner at Todd & Weld LLP.

Cooper singled out a case against a state court judge, Shelley Joseph, who is charged with helping a suspected undocumented immigrant evade federal custody by allowing him to slip out the back door of her courthouse while U.S Immigration and Customs Enforcement agents waited out front.

"I think that most lawyers observing that case outside of the U.S attorney's office feel that it is overly aggressive and an intrusion into state judicial processes," said Cooper, who penned a brief with the Massachusetts Association of Criminal Defense Lawyers backing Judge Joseph and calling the prosecution a "draconian" attempt to deprive immigrants of access to the courts.

"I don't know Mr. Lelling personally, but I think that the ire of the defense bar is not directed at him," Cooper added. "I think we watch as he has to struggle to carry out unjust federal policy that lands disproportionately on poor immigrants."

Through a representative, Lelling declined to be interviewed for this story. Judge Joseph's legal team has repeatedly blasted the prosecution as "political."

Observers note that it's emblematic of a DOJ that has not shied away from controversy, and some say the political tilt has contributed to a dip in office morale in Boston and elsewhere. One assistant U.S. attorney in Lelling's office, James Herbert, went so far as to publish a letter to the editor in the Boston Globe in September saying that Attorney General William Barr had brought "shame" on the DOJ through the "unprecedented" politicization of the department. Herbet's letter did not mention or criticize Lelling.

"There has been a lot of displeasure from current and former prosecutors with how they have perceived that Bill Barr and his deputies have politicized and weaponized the Justice Department," said Christopher Nasson of K&L Gates LLP, a former federal prosecutor. "There is a desire from career prosecutors to simply tone down the rhetoric and depoliticize the work of the Justice Department."

The issue of ICE arrests in courtrooms has pitted the U.S. attorney against state and local law enforcement. Lelling has said he has no issue with the practice and said it happens rarely. Meanwhile, two Boston-area district attorneys are suing in federal court to end the practice in state courthouses, and the state judiciary has expressed concerns over immigrants being deported before having their day in court.

A Biden-appointed U.S. attorney will likely bring more cohesion between the priorities of federal prosecutors and those of state authorities in deep-blue Massachusetts. But defense attorneys said there will be additional, noticeable changes.

"I think if I noticed one difference in the Lelling tenure, it's the office taking a really harsh tack in sentencing recommendations," Nasson said. "There seems to be, in some instances, almost a blind adherence to the sentencing guidelines. I think that's something that is frustrating to both the bar and the bench."

In "Varsity Blues," prosecutors' push for lengthy prison terms has mostly come up empty as multiple judges have rejected their theory for how the guidelines should be calculated.

The government asked for 15 years in prison for Insys founder John Kapoor after he was convicted of a scheme to bribe doctors to prescribe his company's opioid. The request prompted a judge to ask "are you sure" after fellow defendants had been issued far shorter sentences. Kapoor ended up receiving 5½ years.

William Weinreb of Quinn Emanuel Urquhart & Sullivan LLP, who worked in the Boston U.S. attorney's office for more than 20 years and served as acting U.S. attorney before Lelling took over, said the tough sentencing requests are typical of Republican administrations and a product of former Attorney General Jeff Sessions' directive upon taking office.

It's something that will change under a Biden administration, he said.

"The question of over-incarceration is on everyone's minds," Weinreb said. "I definitely think you will see more movement, as you did under the Obama administration, to try to reduce the prison population in a sensible way that does not jeopardize public safety and doesn't put people in prison that shouldn't be there or send people to prison for periods of time that make no sense."

Boston College Law School professor Jeffrey Cohen, who worked under three different Boston U.S. attorneys, said deviations from sentencing guidelines and the discretion given to line prosecutors will be top-of-mind under a new administration.

"I don't think there are a lot of nerves about whether their work is going to change dramatically," Cohen said of prosecutors in the office. "I think there are discussions about other things that affect prosecutors like internal policies that might make a line AUSA's job easier, or not easier."

"Water cooler" topics for those in the office in the coming weeks will also likely focus on who might take the reins of the office or certain units under the new administration, he added.

But in general, Cohen said, the office's priorities "sort of slowly filter in based on what's happening in the world." He noted that when President George W. Bush appointed Michael Sullivan as the U.S. attorney in Boston in the aftermath of 9/11, terrorism was a key focus.

"One of the main jobs of the person in the interim role is to make sure everyone stays focused on the job and doesn't get too distracted by what's happening in Washington," Weinreb said.

Regardless of who might be leading the Boston office a year from now, Eric Rosen, who was a lead prosecutor on the "Varsity Blues" case before recently leaving the office for a private-sector job, said to expect an increased focus on fraud related to the Paycheck Protection Program and cybercrimes targeting business email accounts, both tied to the pandemic.

"With respect to PPP fraud, the Department of Justice has charged a number of people in various jurisdictions, but those are the quick hits," Rosen said.

"Some guy gets a PPP loan and buys a Maserati. An obvious fraud," Rosen said. "The harder ones are the ones that will be fleshed out in another year or two. The people who are less flashy in how they use the money."

A rise in business email schemes has been tied to people not being in their offices nearly as often, allowing scammers access to individual employees who might not be as careful or readily able to see whether a certain email is a hacking attempt.

"These schemes have international aspects, interstate wire aspects, and I think they are a huge problem now and will be for the foreseeable future," Rosen said.

Brian Kelly of Nixon Peabody LLP said changes to the U.S. attorney's office that come with a new administration will be gradual and aren't likely to have much effect on ongoing prosecutions.

"[When] there's a change in administration, there's a new attorney general in Washington, D.C., with perhaps different priorities and that will trickle down to the state-based U.S. attorneys," Kelly said.

Asked if he thought the incoming Biden administration would back off controversial cases like the prosecution of Judge Joseph, Kelly said anything of the sort would be "highly unusual."

"Cases don't get dismissed just because of a new U.S. attorney," Kelly said. "Maybe sentencing recommendations are different, but I don't think any existing cases get thrown out."

--Additional reporting by Brian Dowling. Editing by Aaron Pelc and Pamela Wilkinson.

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