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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

v. : No. 06-CR-319-03
: (Ronald L. Buckwalter, J.)
VINCENT J. FUMO, :
FILED ELECTRONICALLY
Defendant. :

RESPONSE OF DEFENDANT FUMO IN OPPOSITION


TO MOTION TO PRECLUDE ADVICE OF COUNSEL DEFENSE

The United States has filed a motion seeking to preclude

the defense of advice of counsel as to charges under 18 U.S.C.

§ 1519, and to require a hearing outside the presence of the

jury prior to allowing the defendant to advance this defense as

to other obstruction counts. Doc. 427 (Dec. 31, 2008). The

government’s belated motion changing its position on this matter

is grossly unfair. It is also legally unfounded, as applied to

the § 1519 counts, and neither legally sound nor procedurally

warranted as applied to the other counts. For the following

reasons, the motion must be denied.


The government’s motion opens with a discussion of the

"background" of this issue which conveniently overlooks a couple

of the most important points: First, the prosecutors nowhere

mention Judge Yohn’s extensive and detailed opinion, filed in

this case on August 29, 2007, following an evidentiary hearing

and extensive briefing. See United States v. Fumo, 504 F.Supp.2d

6 (E.D.Pa. 2007). It is the law of the case, as established in

that opinion, that the Sprague Firm’s representation of Senator

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Fumo during the entire time frame at issue here was ethically

tainted by multiple conflicts of interest, both serious and less

serious. Id. 33-36. In this regard, the Court to a large

extent adopted the position that the government had advocated.

Second, until the government’s New Year’s Eve filing, the prose-

cution never claimed that an advice of counsel defense might not

be unavailable. Quite the contrary, at the hearing on conflict

of interest, the prosecutors sought Sprague’s removal from the

case, in part, precisely because the defendant might decide to

raise an advice of counsel defense which would make attorney

Sprague and his partners into witnesses (either for or against

their client, or some of each). If no such defense applied to

the charges in this case, then the prosecutors could not have

made that argument when it served their purposes in June and

July 2007.

For these reasons, the defendant is in no way estopped or

bound by what was said on his behalf, in court or otherwise, by

an attorney saddled with conflicts of interest, at least on

matters to which that conflict is pertinent.1 While in many

cases a defendant can waive an attorney’s conflicts (as Judge

Yohn also held), such waiver is only valid when knowingly and

intelligently made (again, as Judge Yohn held). There is no

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1 This reason, among others, also explains why the government is
mistaken in its motion (Doc. 452, filed Jan. 9, 2009) seeking to
use as evidence at trial against Senator Fumo assertions that
Sprague may have made to the prosecutors and/or agents in early
2004 and mid-2006 (or, more likely, agents’ recollections,
characterizations, and understanding of those assertions) about
weaknesses in the government’s case and the nature of the
defense that would be presented.
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basis to think -- indeed, every reason to think otherwise --

that a full and fair disclosure to Senator Fumo and a waiver by

him of Sprague’s conflicts occurred prior to the making of the

statements about advice of counsel referenced in the govern-

ment’s motion. AUSA Zauzmer raised this very issue in argument

before Judge Yohn: "Now[,] they’ve said in their papers ...

[that there will be n]o advice of counsel defense[,] but are

they conflicted in giving that advice?" N.T. (7/10/07), at 18-

19. Accordingly, none of those statements are attributable to

the defendant now, much less are they in any way binding.

Judge Yohn seemed to recognize the same issue when he wrote

in cautious and tentative terms, in the August 2007 opinion:

"Counsel for Fumo has stated that, at this time, they do not

intend to present an advice of counsel defense." 504 F.Supp.2d

at 19. Judge Yohn clearly did not take the Sprague Firm’s

position as final, authoritative or binding.

The government, on the other hand, should be held judi-

cially estopped from changing its position now on the avail-


ability of the advice of counsel defense. See Zedner v. United

States, 547 U.S. 489, 126 S.Ct. 1976, 1987-88 (2006) (rejecting

government’s particular invocation of judicial estoppel against

defendant in criminal case); In re Teleglobe Communications

Corp., 493 F.3d 345, 377 (3d Cir. 2007) (explaining doctrine).

For example, the prosecutors asked on September 12, 2007, that

Judge Yohn advise Senator Fumo, in relation to his proposed

waiver of conflict, that:

An advice of counsel defense may be presented where,


as here, a person is charged with intentionally

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committing fraud, or destroying evidence with the
intent to obstruct a federal investigation. Each of
these crimes requires proof by the government, beyond
a reasonable doubt, that the defendant acted with bad
intent, that is, with intent to defraud or with
intent to obstruct. In opposing such charges, a
defendant may assert the defense, if true, that he
relied in good faith on the advice of an attorney,
after truthfully disclosing to the attorney all
material facts, in taking the actions described by
the government, and therefore did not have any
wrongful intent.

Gov’t Amended Proposed Waiver Colloquy ¶21 (Doc. 160, filed

9/12/07), at 8. When the defense gave its notice of intent to

rely on this defense -- specifying quite clearly the counts to

which we thought the defense would apply -- the government said

nothing about the defense being categorically unavailable. When

defense counsel opened to the jury with reference to this

defense, again the prosecutors said nothing.

The fact of the matter is that the government has now

decided to try to hamstring the defense by changing its legal

position. That tactic should not be allowed.

1. Advice of Counsel Under § 1519. As a matter of law,

the government was right in July 2007, and is wrong now:


reliance on the advice of counsel is indeed a valid defense to

all the obstruction of justice charges in this indictment. In

considering this issue, it is important to keep in mind that

most criminal cases involving "advice of counsel," by defini-

tion, involve erroneous advice of counsel. After all, if

counsel’s advice endorsing the defendant’s charged conduct had

been correct, the Court would likely have dismissed the charges

on pretrial motion. The government is right that there are

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categories of offenses as to which advice of counsel applies

differently, but the prosecutors’ motion (at pp. 4-6) has the

law concerning advice of counsel almost completely backwards.

First, there are some offenses where knowledge of the law

is an element. For these offenses, the government must prove

that the accused, at the time of the alleged act, held a subjec-

tive and accurate belief (or at least a conscious awareness)

that his or her conduct was unlawful, although not necessarily

that it was criminal. E.g., Cheek v. United States, 498 U.S.

192 (1991); United States v. Pomponio, 429 U.S. 10, 12 (1976)

(per curiam) (tax crimes); United States v. Alston, 77 F.3d 713,

718-21 (3d Cir. 1996) (conspiracy to defraud the United States

in a tax matter); Ratzlaf v. United States, 510 U.S. 135 (1994)

(structuring financial transactions); United States v. Curran,

20 F.3d 560 (3d Cir. 1995) (campaign finance violation). The

fact that the conduct at issue would be innocent and not

blameworthy under society’s general standards, had it not been

made criminal by statute, is a significant factor in construing


such provisions to require knowledge of illegality as part of

the mens rea. Id. In such cases, any evidence concerning the

defendant’s knowledge of the pertinent law would be directly

relevant, and a reasonable doubt about whether the defendant had

the required knowledge, regardless of the reason for that

ignorance, requires acquittal.

Thus, whenever the statute as written or the case law

construing that statute requires what Third Circuit Model Jury

Instruction 5.05 defines as "willfulness," good faith belief in

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the lawfulness of one’s conduct is a defense. The fact that the

defendant’s flawed knowledge (or mistaken belief) about the law

may have been received from a lawyer cannot make that informa-

tion less admissible. Any relevant evidence on the mens rea

element must be allowed, without first imposing any three-part

"test"; advice of counsel in that situation is not like an

affirmative defense. A reasonable doubt on the issue of whether

the defendant acted in good faith, that is, whether the defen-

dant intended to violate the law as he or she understood it, is

enough to require acquittal.

The government claims that there is also a class of cases

where advice of counsel is not a defense at all. In support of

this argument, the prosecutors string-cite at pages 5-6 of their

motion a number of non-precedential cases -- a remarkably weak

showing of authority for what they claim is the general rule.

It is true that there are many "general intent" crimes, where

knowledge of the law or any intent to violate the law is

ordinarily immaterial. See, e.g., Bryan v. United States, 524

U.S. 184, 199 (1998) (discussing provisions of Gun Control Act

which require only that prohibited act be committed "know-

ingly"). Perhaps there are cases where any (mistaken) advice of

counsel as to the legality of one’s acts would be irrelevant,

although to our knowledge the Third Circuit has only identified

one, and that was 33 years ago, in dictum, in a divided

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opinion.2 The model instruction in O’Malley, Grenig & Lee

suggests that the advice of counsel is a defense to any charge

of "willful or deliberate wrongdoing." 1A Federal Jury Practice

and Instructions: Criminal § 19.08, at 837 (6th ed. 2008). More

important is that nothing in the Third Circuit’s holdings about

advice of counsel even hints at any support for the government’s

restrictive position.

The requirements for an "advice of counsel" defense are set

forth in United States v. Traitz, 871 F.2d 368, 382-83 (3d Cir.

1988); United States v. Martorano, 767 F.2d 63, 66 (3d Cir.

1985) (per curiam); and Levinson v. United States, 263 F. 257

(3d Cir. 1920). Martorano was prosecuted for knowingly making a

false statement on an ERISA document; the Third Circuit specifi-

cally held "that a general intent (a failure to disclose) rather

than a specific intent (a failure to disclose knowing that such

failure violates a statutory disclosure requirement) is all that

is required to prove a violation of § 1027." 767 F.2d at 66.

On appeal, he claimed insufficient evidence to convict, based on


his alleged reliance on legal advice that he need not make the

disclosure at issue. The Third Circuit affirmed, finding that

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2 See United States v. Irwin, 546 F.2d 1048, 1053-54 (3d Cir.
1976) (although Selective Service Act penalized only "knowing
and willful" failures to report for induction, court did not err
in excluding defendant’s testimony that judge advised him he had
to resolve pending court case before entering the military;
citing with apparent approval cases stating advice of counsel is
no defense to failure to appear for induction). This Third
Circuit case by itself demonstrates that the government’s
simplistic verbal-formula rule is incorrect. If Irwin was
correctly decided (Judge Van Dusen dissented at length), then
the answer clearly does not turn on whether "willfulness" is
among the essential elements of the offense.
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the evidence failed to show either that appellant had made a

full disclosure of the facts or that he had relied on the advice

at issue. The Court never suggested that the defense was cate-

gorically unavailable for a general intent crime.

Similarly, in Levinson, the defendant was accused of

"knowingly and fraudulently" presenting a false claim in bank-

ruptcy. The trial court charged the jury that if Levinson

"sought the advice of counsel, disclosing honestly and fully the

real and true facts concerning his claim" and on the basis of

advice he then received submitted the claim at issue, then "he

should not be convicted." The Third Circuit held this charge

was correct and that the issue was properly submitted for the

jury’s decision. Traitz was a Hobbs Act extortion case against

union leaders, where the government had to prove that the

defendants invoked a "wrongful" use of force or fear. The

district court instructed the jury on reliance "in good faith"

on the advice of counsel. The defendants objected that the

instructions had required the attorney’s advice have gone into


more detail than appropriate about how the defendants would

conduct themselves in their dealings with employers. In

affirming, the Third Circuit never suggested that the court

should not have charged on the defense at all. Rather, the

Court held that "the jury charge on the advice of counsel

defense was proper ...." 871 F.2d at 383 n.11.

The government now asserts, in contradiction of its earlier

position, that 18 U.S.C. § 1519, because it does not require

proof of knowledge of the law in every case, does not allow for

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an advice of counsel defense in any case. But as the government

earlier conceded, and as the Third Circuit precedents show, this

illogical position is wrong. No offense exists under § 1519

unless the defendant acts both "knowingly" and "with the intent

to impede, obstruct or influence the investigation ... of any

matter within the jurisdiction or any department or agency of

the United States ..., or in relation to or contemplation of any

such matter ...." The defendant therefore must act with

specific intent, not merely with general intent. To be sure,

the required/prohibited specific intent is not "willfulness" or

an "intent to violate the law," but it is a specific intent

(that is, a particular purpose) nonetheless. In such cases, at

least (if not in all cases, as Martorano would suggest), advice

of counsel is a defense, although regulated. It is telling that

in seven pages of discussion (Gov’t Mtn., at 7-13) the govern-

ment cites not a single decision under § 1519 in support of its

position.3

When Congress amended § 1519 in 2002 (it was formerly only


a bankruptcy-related provision), with the purpose of eliminating

some of the technical restrictions of §§ 1503 and 1512,

including any suggestion that a "proceeding" in esse was

required, it did not eliminate specific intent from the statute

entirely. After all, Congress could hardly be expected to make

it a felony to destroy any object or record that might someday

prove interesting to a federal investigator. As Chief Justice

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3 Nor are defense counsel aware of any.
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Rehnquist wrote for a unanimous Supreme Court:

[R]estraint in assessing the reach of a federal


criminal statute ... is particularly appropriate
where the act underlying the [accusation] ... is by
itself innocuous. Indeed, ‘persuad[ing]’ a person
‘with intent to ... cause’ that person to ‘withhold’
testimony of documents from a Government proceeding
or Government official is not inherently malign. ...
* * * *
‘Document retention policies,’ which are created in
part to keep certain information from getting into
the hands of others, including the Government, are
common in business. ... It is, of course, not
wrongful for a manager to instruct his employees to
comply with a valid document retention policy under
ordinary circumstances.

Arthur Andersen LLP v. United States, 544 U.S. 696, 703-04

(2005) (discussing and construing 18 U.S.C. § 1512). For these

same reasons, it cannot be presumed that Congress intended the

specific intent requirement of § 1519 to be construed so

strictly as to make it a felony to continue (or reinforce the

importance of) a pre-existing, legitimate policy in all circum-

stances. Even a well-informed attorney may have advice to give,

for example, on such issues as whether "the investigation of" a

federal matter has begun, and whether the potential for such
investigation is sufficiently concrete or likely that one can be

said, in continuing a pre-existing policy, to be acting "in

contemplation" of any such investigation. And as already noted,

advice of counsel when invoked as a defense often involves an

attorney’s giving of (what the criminal court has found to be)

erroneous advice.

Accordingly, this Court should not become the first since

§ 1519 was enacted to reach out and create an issue as to

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whether advice of counsel -- which, as already noted, means by

definition erroneous advice of counsel -- is a cognizable

defense to a prosecution under that law. The first request for

relief in the government’s motion should be denied.

2. Government Request for a Hearing on the Strength of the

Defense. Nor should the Court waste everyone’s time with a non-

jury hearing on whether the defense will be able, through its

own evidence and the cross-examination of government witnesses,

to adduce sufficient evidence to justify a jury instruction on

the advice of counsel defense. Defense counsel have made the

good faith representation that we will. The government’s hope

that we will not -- based on a selective reading of the Sprague

Firm’s file and interviews with one or more of its attorneys --

is an insufficient basis to justify the kind of minitrial

proposed by the government in its motion. The cited cases

(Gov’t Mtn. at 15) lend the prosecution no support -- they deal

with whether an advice of counsel instruction should have been

given, in light of the record in each of those cases at the

close of the evidence. None suggests the kind of preliminary

non-trial showing sought by the government.

The prosecutors are wrong to suggest that the defense must

"establish" the "elements of the defense." Gov’t Mtn. at 16.

No case holds that advice of counsel is an affirmative defense

on which the defense bears the burden of persuasion. Rather,

advice of counsel, as a species of "good faith," is simply a

basis on which the jury can entertain a reasonable doubt as to

the defendant’s criminal intent, and thus acquit. See United

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States v. Zehrbach, 47 F.3d 1252, 1261-62 (3d Cir. 1995) (en

banc) (no separate charge required to explain that general "good

faith" is simply inconsistent with specific "intent to

defraud"). The defense burden is simply to offer some evidence

(direct or circumstantial) from which the jury might entertained

a reasonable doubt on each of the propositions articulated in

the Third Circuit cases. See United States v. Hoffacker, 530

F.3d 137, 156 (3d Cir. 2008) (court must charge on advice of

counsel defense if there is "any foundation in the evidence" for

it). "Where the advice of counsel is properly invoked it

becomes ‘a matter to be considered by the jury in determining

the defendants’ guilt.’" Traitz, 871 F.2d at 382 n.9.

The Court will appropriately instruct the jury to that if

the defense is credited at least to the extent of generating

reasonable doubt, then they should acquit on the count at issue.

No preliminary hearing on the matter is needed.

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For these reasons, the government’s motion should be

denied.

Respectfully submitted,
Dated: January 11, 2009
s/Peter Goldberger
PETER GOLDBERGER By: DENNIS J. COGAN
PA Atty. No. 22364 DENNIS J. COGAN & ASSOC.
50 Rittenhouse Place 2000 Market St., suite 2925
Ardmore, PA 19003 Philadelphia, PA 19103
(610) 649-8200 (215) 545-2400
fax: (610) 649-8362 fax: (215) 988-1842
e-mail: peter.goldberger@verizon.net e-mail: cogan2128@aol.com

STEPHEN ROBERT LaCHEEN


LaCheen Wittels & Greenberg, LLP
1429 Walnut Street, 13th Floor
Philadelphia, PA 19102
(215) 735-5900
fax: (215) 561-1860
e-mail: slacheen@concentric.net

Attorneys for Defendant Vincent J. Fumo

CERTIFICATE OF SERVICE

On January 12, 2009, I served a copy of the foregoing

document through the Court’s electronic filing system on the

attorneys for the government, as follows:


John J. Pease, Esq. Edwin J. Jacobs, Esq.
Robert A. Zauzmer, Esq. JACOBS & BARBONE, P.A.
Assistant U.S. Attorneys 1125 Pacific Ave.
615 Chestnut St., suite 1250 Atlantic City, NJ 08402
Philadelphia, PA 19106

__s/Peter Goldberger____________

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