Some Charges in Court Scandal Dismissed

In a victory for the defense, a federal judge with a reputation as a maverick Tuesday threw out the conspiracy charges against a lawyer and two former judges indicted in a courthouse scandal.

U.S. District Judge Edward Rafeedie ruled that prosecutors had stretched the law to the breaking point in indicting civil attorney Patrick Frega and former Superior Court Judges G. Dennis Adams and James Malkus under a section of federal law dealing with bribery cases involving federal officials or federal money.

Adams and Malkus are accused of taking gifts, money and favors from Frega, a successful plaintiff’s attorney, while handling cases involving Frega’s clients. Former Superior Court Judge Michael Greer has already pleaded guilty to a charge of taking bribes from Frega and, as part of a plea bargain to avoid prison, agreed to testify against the three defendants.

Defense attorneys immediately hailed Rafeedie’s ruling and suggested that it will lead Rafeedie to also throw out the 16 mail fraud charges against Frega, Adams and Malkus, which would be a crushing defeat for U.S. Atty. Alan Bersin, whose office spent 18 months on the case before the April indictments.

Mario Conte, a federal public defender representing Adams, called the ruling “correct and courageous.”

Dennis Riordan, the San Francisco attorney representing Frega, said that throwing out the conspiracy count “guts the heart of the prosecution’s case” because the mail fraud charges are merely charges showing how the alleged conspiracy was carried out.

Riordan and attorneys representing Adams and Malkus have insisted from the beginning that the federal government lacked jurisdiction to bring charges against state judges. Rafeedie’s ruling, Riordan said, “is the opposite of a technicality: Its essence is that these are not charges that can be brought in federal court.”

Former U.S. Atty. William Braniff, now in private practice, said that he did not think that striking down the conspiracy count means that Rafeedie will also strike down the mail fraud counts. Braniff had been among those attorneys who thought the conspiracy charge was a stretch.

Braniff noted that Congress amended the federal mail fraud statute to include language that fraud exists when someone interferes with the public’s “intangible right to honest services,” whether or not those services involve federal officials or federal money.

“It does not necessarily follow that if the first count [conspiracy] goes, the mail fraud also goes,” Braniff said.

As they prepare for a July 15 trial date, prosecutors have three options: Seek a superceding indictment alleging a conspiracy on different grounds, appeal Rafeedie’s decision, or wait until the June 25 hearing at which Rafeedie will rule on the defense attorneys’ motion to throw out the mail fraud counts.

Prosecutors would not discuss their strategy.

“The indictment challenges the defendants’ conduct on several grounds, only one of which is affected by today’s ruling,” said Assistant U.S. Atty. Judy Feigin. “Very serious and substantial charges remain.”

The ruling was in keeping with Rafeedie’s history as a judge who, despite his conservative leanings and his status as an appointee of President Ronald Reagan, has not been reluctant to rule against law enforcement agencies if he believes they have overstepped their bounds in pursuing a criminal conviction.

In perhaps his most controversial decision, Rafeedie ruled in 1992 that the government had acted improperly in kidnapping a Mexican doctor thought to be implicated in the murder of U.S. Drug Enforcement Administration agent Enrique Camarena. When the Supreme Court overruled Rafeedie, he found another legal reason to quash the case against the doctor.

Rafeedie, a senior judge on the Los Angeles federal bench, was assigned to the San Diego case when all of the federal judges in San Diego recused themselves because they know the defendants.

The three defendants are accused of 16 mail fraud counts, based on communication between them about Frega’s many cases. Frega also faces a racketeering charge for allegedly running his legal practice as a criminal enterprise.

Part of the complexity of the case is that it has generally been characterized as a bribery case, but the defendants are not charged under the main federal bribery law, which requires that a quid pro quo be shown between a gift given and a preference received.

Rather, federal prosecutors have argued that the secret giving of gifts to a judge by a lawyer with pending cases compromises the judicial system by giving an unfair advantage to that lawyer and destroying the impartiality of the judiciary.