U.S. Attorney Asks Court to Erase Criticism : Rulings: Appeals judges are urged to take back harsh words they had for a prosecutor who made untrue statements to a jury. Two drug convictions were overturned in the case.

The U.S. attorney’s office in Los Angeles has taken the highly unusual step of asking a federal appeals court to erase or at least soften a stingingly critical decision that accuses a prosecutor of a major ethical violation in a drug case.

U.S. Atty. Terree A. Bowers made the unusual request in a brief he recently filed in response to an Aug. 4 U.S. 9th Circuit Court of Appeals ruling. That ruling reversed the convictions of two people for selling $100,000 worth of heroin to an undercover drug enforcement agent.

In a unanimous decision by three conservative judges, the appeals court said the guilty verdicts had been tainted by Assistant U.S. Atty. Jeffrey S. Sinek’s “misstatements” to the jury, which denied the defendants due process of law. The opinion also said that his superiors seemed to have condoned his misconduct.

“The prosecutor’s job isn’t just to win, but to win fairly, staying well within the rules,” wrote Judge Alex Kozinski, an appointee of President Ronald Reagan. “The government here has strayed from this responsibility.”

At a critical moment during the 1991 trial, a defense lawyer tried to persuade jurors that because a key player in the drug deal--Krikor Nourian--had not testified, they could infer that his testimony would damage the government’s case.

Prosecutor Sinek retorted that jurors should make no such inference. Sinek declared that although Nourian had been arrested, he had a constitutional right to remain silent and that the government could not force him to talk. That was untrue.

In reality, Nourian had given up that right. He had entered into a cooperation agreement with federal officials, promising to testify if the government requested it--a fact that did not become public until Judge Kozinski forced Sinek to admit it during the appeals hearing a year later.

“What we find most troubling about this case,” Kozinski wrote, “is not Sinek’s initial transgression, but that he seemed to be totally unaware he’d done anything at all wrong, and that there was no one in the United States attorney’s office to set him straight.”

Kozinski also lambasted the U.S. attorney’s office for failing to acknowledge the extent and significance of Sinek’s misconduct, even after it was given an opportunity to file a supplemental brief during the appeals process. He said the government’s response does not “inspire our confidence that this kind of thing won’t happen again.”

Bowers responded last month with a contritely written brief attempting to persuade the appeals court judges to remove that opinion from federal court records, or to at least modify it. The U.S. attorney said neither Sinek nor the office acted with bad motives, and that errors in the case “were the unfortunate result of errors of judgment, driven, in Mr. Sinek’s case, by his failure to fully understand the unique and special obligations of prosecutors.”

Judicial criticism of the type leveled in this case is rare, according to legal experts.

“This is the most blistering critique of this U.S. attorney’s office in an appellate decision” in many years, said Loyola University law professor Laurie Levenson, a former federal prosecutor.

“The court has chosen this case to send a message regarding the ethical standards of prosecutors,” she said. “There are different types of misconduct, but the type complained of by the court in this case goes to the heart of the criminal justice system. The system relies on prosecutors to disclose information that could affect the outcome of a case. “

Levenson said the overall record of integrity of the U.S. attorney’s office is quite good. But she said the ruling may reflect the concern of some judges that prosecutors have been given too much leeway in the war on drugs and other anti-crime efforts.

Because of a well-established Supreme Court decision, Sinek had an obligation to disclose that Nourian had a cooperation agreement with the government. Jurors could have inferred from his failure to testify that Nourian had information that would have undercut the government’s case.

In criticizing Sinek’s conduct, Kozinski wrote that the court was “more troubled still by the lack of supervision and control exercised by those above him. The U.S. attorney allowed the filing of an (appeal) brief . . . that did not own up to the problems” in the case. Then after the judges expressed concerns during the oral arguments, the government filed a supplemental brief that fell “disappointingly short” of addressing those concerns.

Bowers said in his brief that his office “has taken the court’s criticisms to heart,” appointing a special ethics coordinator for the office and instituting changes in internal procedures for reviewing briefs.

In attempting to persuade Kozinski and his 9th Circuit colleagues Robert R. Beezer and Andrew J. Kleinfeld to “depublish” their stinging opinion, Bowers said the opinion “irreparably damages the career of an individual prosecutor.”

He characterized Sinek as a young lawyer who erred in the heat of battle. At the very least, Bowers said, the court should delete Sinek’s name from its opinion and only refer to him as “the prosecutor” when describing his conduct.

Sinek admitted in a declaration filed with Bowers’ brief that it was wrong for him to fail to disclose that Nourian, a potential witness, was cooperating with the Drug Enforcement Administration and that it was “inappropriate” for him to tell the jury that the government could not have called him to testify.

Sinek also said he did not understand his disclosure obligations. He said he feared that Nourian’s safety might have been put at risk if he testified. Sinek maintained that he believed Nourian had no information that would have been helpful to the defense, a contention that is challenged by defense lawyers.

The defense lawyer, Ronald J. Nessim, said in an interview that he opposes the government’s motion and will soon submit a brief to that effect.

“Although I regret the personal embarrassment the opinion causes . . . opinions like this benefit the legal system. They provide guidance to future prosecutors and defense attorneys as to what conduct is permissible,” said Nessim, who was a federal prosecutor in Los Angeles from 1984 to 1987.

Southwestern University law professor Myrna Raeder said that depublishing the opinion would rob the legal profession of an important lesson, one that should stand as a precedent in the field of prosecutorial misconduct.

Veteran criminal defense lawyer Barry Tarlow, who has written about the case and others like it in the Los Angeles Daily Journal, a legal newspaper, said he hoped that the 9th Circuit would not sanitize its opinion. “Keeping prosecutors’ conduct secret only encourages similar activity because it allows government lawyers to avoid publicly accepting responsibility.”

Beyond the legal ethics debate, the 9th Circuit’s response to Bowers’ motion also could have a significant impact on Nessim’s client, Chake G. Kojayan, a middle-aged Lebanese woman who came to Los Angeles from Lebanon on June 13, 1991, with $100,000 worth of heroin sewn into a bag.

Kojayan has been in custody since her arrest on June 26, 1991, when her co-defendant attempted to sell the heroin to an undercover DEA agent. At trial, Kojayan, who does not speak English, and her co-defendant attempted to blame one another.

Kojayan claimed she had served as a courier for a friend without knowing what she was transporting. After she was convicted, Kojayan was sentenced to a 10-year minimum mandatory sentence.

The appeals court decision sent the case back to trial Judge Edward Rafeedie to determine if the defendants should be retried or if the charges should be dismissed as a sanction for the government’s misbehavior. The degree to which the appeals court stands by its original conclusions may affect whether Rafeedie decides to hold another trial or throws the case out.

An appeals court response to Bowers’ motion to modify its ruling is expected later this year.