[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
EXECUTIVE OFFICE FOR
UNITED STATES ATTORNEYS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JUNE 25, 2008
__________
Serial No. 110-188
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas STEVE CHABOT, Ohio
MAXINE WATERS, California DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts CHRIS CANNON, Utah
ROBERT WEXLER, Florida RIC KELLER, Florida
LINDA T. SANCHEZ, California DARRELL ISSA, California
STEVE COHEN, Tennessee MIKE PENCE, Indiana
HANK JOHNSON, Georgia J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois TOM FEENEY, Florida
BRAD SHERMAN, California TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on Commercial and Administrative Law
LINDA T. SANCHEZ, California, Chairwoman
JOHN CONYERS, Jr., Michigan CHRIS CANNON, Utah
HANK JOHNSON, Georgia JIM JORDAN, Ohio
ZOE LOFGREN, California RIC KELLER, Florida
WILLIAM D. DELAHUNT, Massachusetts TOM FEENEY, Florida
MELVIN L. WATT, North Carolina TRENT FRANKS, Arizona
STEVE COHEN, Tennessee
Michone Johnson, Chief Counsel
Daniel Flores, Minority Counsel
C O N T E N T S
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JUNE 25, 2008
Page
OPENING STATEMENTS
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Chairwoman, Subcommittee on
Commercial and Administrative Law.............................. 1
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Subcommittee on Commercial and
Administrative Law............................................. 3
WITNESSES
Kenneth E. Melson, Esq., Director, Executive Office for United
States Attorneys, U.S. Department of Justice, Washington, DC
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Heather E. Williams, Esq., First Assistant, Federal Public
Defender, District of Arizona, Tucson, AZ
Oral Testimony................................................. 45
Prepared Statement............................................. 47
Richard L. Delonis, Esq., President, National Association of
Assistant United States Attorneys, Lake Ridge, VA
Oral Testimony................................................. 87
Prepared Statement............................................. 89
Jonathan Turley, Esq., The George Washington Law School,
Washington, DC
Oral Testimony................................................. 109
Prepared Statement............................................. 111
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Article submitted by the Honorable Zoe Lofgren, a Representative
in Congress from the State of California....................... 134
APPENDIX
Material Submitted for the Hearing Record
Response to Post-Hearing Questions from Kenneth E. Melson,
Director, Executive Office for United States Attorneys, U.S.
Department of Justice, Washington, DC.......................... 154
Response to Post-Hearing Questions from Heather E. Williams,
First Assistant, Federal Public Defender, District of Arizona,
Tucson, AZ..................................................... 164
Post-Hearing Questions submitted to Richard L. Delonis,
President, National Association of Assistant United States
Attorneys, Lake Ridge, VA...................................... 170
Response to Post-Hearing Questions from Jonathan Turley, George
Washington Law School, Washington, DC.......................... 171
EXECUTIVE OFFICE FOR
UNITED STATES ATTORNEYS
----------
WEDNESDAY, JUNE 25, 2008
House of Representatives,
Subcommittee on Commercial
and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:29 p.m., in
room 2141, Rayburn House Office Building, the Honorable Linda
Sanchez (Chairwoman of the Subcommittee) presiding.
Present: Representatives Sanchez, Johnson, Lofgren,
Delahunt, Cohen, Jordan, and Franks.
Staff present: Eric Tamarkin, Majority Counsel; Daniel
Flores, Minority Counsel; and Adam Russell, Majority
Professional Staff Member.
Ms. Sanchez. This hearing of the Committee on the
Judiciary, Subcommittee on Commercial and Administrative Law
will now come to order.
Without objection, the Chair will be authorized to declare
a recess of a hearing at any point.
I would now like to recognize myself for an opening
statement.
In the first session of the 110th Congress, we examined
some aspects of the Executive Office for U.S. Attorneys, EOUSA,
particularly in the context of the U.S. attorney firing
scandal.
Today, the Subcommittee will exercise its oversight
responsibilities and review the performance of the Justice
Department. Specifically, we will scrutinize EOUSA and the work
of the 94 U.S. attorney offices throughout the country. We hope
to learn, among other things, what resources that these offices
may need to effectively meet their responsibilities.
Much to my dismay and frustration, we have yet to obtain
information from the White House to finally allow Congress and
the public to learn the full extent of the politicization of
the Justice Department. While I do not expect to learn those
answers today, I do expect to find out how the controversy
affected morale in the U.S. attorneys' offices, and what
adjustments EOUSA has made in response to the issues raised
during the controversy.
Separate and apart from the U.S. attorney firing scandal, I
have a number of concerns about the operation of EOUSA and the
U.S. attorneys' offices that I hope members of our panel will
address, either in their statements or during questioning.
First, I am troubled by U.S. Attorney Thomas P. O'Brien's
decision in March of 2008 to eliminate the Public Corruption
and Environmental Crime Section in the Los Angeles office and
transfer its 17 prosecutors to other units in the office.
According to current and former prosecutors, the dissolution of
the public corruption unit will severely limit the office's
ability to file long-term, complex corruption cases involving
elected officials and other high profile figures.
Furthermore, some prosecutors have alleged that this
decision signifies an effort by Mr. O'Brien to drive up
statistics in the office by requiring the prosecution of high-
volume, low-quality cases.
I am also concerned about the apparent shift in focus
toward immigration prosecutions to the detriment of other kinds
of prosecution. Specifically, between 2000 and 2006,
prosecutions for immigration violations increased by 36
percent. However, in the same time period there were
significant declines in the number of prosecutions for
environmental violations of 12 percent, organized crime of 38
percent, white-collar crime of 10 percent, bank robbery of 18
percent and bankruptcy fraud of 46 percent.
This recent surge of immigration cases has triggered
concerns about the imbalanced use of resources. The department
estimates that U.S. attorneys will file over 24,000 cases
involving immigrants over the next 2 years. If both prosecutors
and Federal defenders are spending most of their time and
limited resources on misdemeanor border crossing cases, they
are not able to work on more complex prosecution.
While I believe that immigration prosecution is certainly a
priority, I think it is very important that Congress scrutinize
the department's method of budgeting its limited resources to
make certain that all areas of concern can be addressed.
Additionally, the expanded effort to prosecute immigration
cases has raised concerns about whether due process rights,
such as adequate access to counsel, are being sacrificed in the
crush of bloated court dockets.
Next, I look forward to reviewing the department's record
on terrorism prosecution. When the inspector general's report
on the department's terrorism prosecution statistics was
released last year, I was troubled by the I.G.'s finding that
statistical data on terrorism prosecutions compiled by EOUSA
was plagued by inaccuracies. I hope that EOUSA has since
rectified how terrorism prosecution statistics are calculated.
Regardless of how terrorism prosecution statistics are
tallied, Congress should probe whether the proportion of
terrorism prosecutions is in line with the amount of resources
devoted to those prosecutions.
I do agree with the Administration's view that prosecuting
terrorists should be a top priority that warrants a significant
appropriation of resources. And it is our duty in Congress to
make sure those significant resources are being used
effectively.
In the nearly 6,500 cases treated by the Justice Department
as terrorism investigations between September 2001 and
September of 2006, only about one in five defendants were
convicted. Congress would be abdicating our oversight duties if
we simply threw money at terrorism prosecutions without
examining just how that money is spent.
Because many of these questions have not recently been
explored, I believe it is imperative that we ask them now.
Accordingly, I look forward to hearing from the witnesses on
these and other critical issues.
At this time, I would now like to recognize Mr. Franks, the
acting Ranking Member, for his opening remarks.
Mr. Franks. Well, thank you, Madam Chairman.
And that is an emphasis on ``acting.'' There is no one that
can replace the very able Chris Cannon. And he certainly is
much more familiar with the workings of this Committee than I
am, but I will do my best.
Madam Chair, this hearing marks the first time during this
110th Congress that our Subcommittee has held an oversight
hearing on the Executive Office for U.S. Attorneys, despite the
fact that the office's mission is vital to the functioning of
the department and its U.S. attorneys' offices. A quick look at
the office's mission statement will help anyone to appreciate
the enormous tasks the office performs, and a look at the small
size of its personnel should leave doubts that the office can
actually fulfill those tasks.
When Republicans held the Congress, we held earlier
oversight hearings with EOUSA. Our regular oversight of the
office helps us to understand the challenges the office faces
and to assure that its staff has the well-calibrated resources
and the congressional guidance that it needs to carry out its
duties faithfully.
So, today, I would like to inquire into some of the most
important of those issues.
For example, just this month the department announced the
latest wave of nationwide arrests in its investigation of the
mortgage crisis that has plagued our economy for much of this
term. That investigation is known as the Operation Malicious
Mortgage.
This operation has involved more than 50 U.S. attorneys'
offices, Main Justice, the FBI and at least eight sister
agencies. EOUSA must have been at the heart of this effort,
supporting and facilitating coordination between the
department, U.S. attorney's office and a host of other agencies
who joined the department in this endeavor.
I would like to know what challenges EOUSA faced, what
shortcomings it overcame or did not overcome, what lessons it
learned and what that tells us about how we can help the office
to build on this experience to meet the next crisis we face
with even greater success.
I also want to know if Countrywide Financial's VIP mortgage
program, also known as the ``Friends of Angelo'' program, came
up in the department's investigation.
As many know, Countrywide's CEO, Angelo Mozilo, is reported
to have given preferential loans to Senators Christopher Dodd
and Kent Conrad. Others implicated are James Johnson, former
member of Senator Barack Obama's vice presidential vetting
team; former HHS Secretary Donna Shalala; and former U.N.
Ambassador Richard Holbrooke. Indeed, there appears to be
evidence that a number of prominent and powerful Democrats
benefited from sweetheart mortgage deals, while average
Americans struggle in communities across the country.
Countrywide is reportedly under investigation for
securities fraud, and Mr. Mozilo is being questioned about
selling off nearly a half billion dollars worth of Countrywide
shares between 2004 and 2007, when the subprime mortgage bubble
burst.
Allegations that Mr. Mozilo and Countrywide bought favors
from legislators will cast a shadow over the American people's
trust in our government until the Democrat majority allows the
Congress to investigate this matter, as it should have been,
and as Republican leaders have demanded.
Let us all remember that when Democrats took the House in
2006, they pledged to do two things: drain the swamp of
corruption and lower gas prices. Republicans and the Nation are
still waiting for Democrats to honor those promises. If
Democrats won't drill for oil, perhaps they should at least
drill for corruption within their own ranks.
There are many other pressing law enforcement issues that
we need to discuss with EOUSA, and I plan to address as many as
I can. I expect, too, that some Members of the Committee will
want to spend our time today revisiting issues already covered
in last year's U.S. attorneys investigation.
I hope that does not unnecessarily prevent us from getting
the most out of this hearing. We explored those overtrumped
partisan issues in depth last year, while the majority
neglected the need to pay attention to our regular oversight
duties.
We need not rehash them today, while Democrats stonewall
the investigation that Republicans have demanded into
Countrywide VIP mortgage kickbacks. Today, we need to focus on
the real issues that now stand front and center before our
Nation.
And I yield back my time, Madam Chair.
Ms. Sanchez. The gentleman yields back the balance of his
time.
Without objection, other Members' opening statements will
be included in the record.
I am now pleased to introduce the witnesses on our panel
for today's hearing.
Our first witness is Ken Melson. On May 14, 2007, Mr.
Melson became the director of the EOUSA. EOUSA provides
administrative oversight to the 94 U.S. attorneys' offices
across the country. In addition, EOUSA also serves as a liaison
between the U.S. attorneys and other Federal agencies and
Department of Justice components.
Mr. Melson has served in the Department of Justice as a
Federal prosecutor for nearly 24 years, joining the U.S.
Attorney's Office for the Eastern District of Virginia in June
1983, as an assistant U.S. attorney, and in June 1986, becoming
the first assistant U.S. attorney.
He has also served as the interim U.S. Attorney for the
Eastern District of Virginia from July 1991 to October 1991,
March 1993 to September 1993, and April 2001 to September 2001.
Welcome to you, Mr. Melson. Thank you for coming.
Our second witness is Heather Williams. Ms. Williams is the
first assistant Federal public defender for Tucson, Arizona.
Prior to her services as the first assistant, Ms. Williams was
the immigration unit supervisor from 1999 to 2006, and has been
with the Federal Public Defender's Office since 1994. From 1988
to 1994, she was an assistant public defender in the Pima
County Public Defender's Office in Tucson.
Ms. Williams has over 70 jury trials and numerous appeals
to her credit, covering the gamut of offenses. She has spoken
at seminars across the United States and teaches at the
National Criminal Defense College each summer, and legal ethics
for the criminal practitioner at the University of Arizona Law
School.
Welcome, Ms. Williams.
Our third witness is Richard Delonis, representing the
National Association of Assistant U.S. Attorneys. Mr. Delonis
is an assistant United States Attorney in the Detroit office of
the United States Attorney's Office for the Eastern District of
Michigan.
As an assistant U.S. attorney, Mr. Delonis has represented
the United States before Federal grand juries in criminal
trials and before the appellate courts. He has prosecuted
criminal cases involving major fraud schemes, narcotics
conspiracy, aircraft hijacking, murder, interstate theft and
white-collar crime. Mr. Delonis is currently assigned to the
prosecution of criminal tax cases and previously was a member
of the Organized Crime Strike Force.
Mr. Delonis has served on the board of directors of the
National Association of Assistant U.S. Attorneys since the
organization's inception in 1993, and has served as the
organization's national president since 1996.
We want to welcome you to our panel today.
Our final witness is Jonathan Turley. Professor Turley is a
nationally recognized legal scholar who has written extensively
in areas ranging from constitutional law to legal theory to
tort law. After a stint at Tulane Law School, Professor Turley
joined the George Washington University Law School faculty in
1990, and in 1998 became the youngest chaired professor in the
school's history.
Professor Turley has served as counsel in some of the most
notable cases in the last two decades, including his
representation of the Area 51 workers at a secret airbase in
Nevada, the nuclear couriers at Oak Ridge, Tennessee, the Rocky
Flats grand jury in Colorado, Dr. Eric Foretich, the husband in
the Elizabeth Morgan custody controversy, and four former U.S.
attorney generals during the Clinton impeachment litigation.
He has served as a consultant on homeland security and
constitutional issues, and is a frequent witness before the
House and Senate on constitutional and statutory issues, as
well as tort reform legislation.
I want to thank you all for your willingness to participate
in today's hearing. Without objection, your written statements
will be placed into the record in their entirety. And we are
going to ask that you limit your oral testimony today to 5
minutes.
We have a lighting system here that you will note. When
your time begins you will be given a green light. After 4
minutes the light will turn yellow, warning you that you have a
minute left in your testimony. And of course, when the red
light comes on, that lets you know your time has expired.
If you are mid-sentence or caught mid-thought when the red
light comes on, we will, of course, allow you to finish that
final thought before moving on to the next witness.
After each witness has presented her or his testimony,
Subcommittee Members will be permitted to ask questions subject
to the 5-minute limit.
So, with that, I am going to invite Mr. Melson to please
begin his oral testimony.
TESTIMONY OF KENNETH E. MELSON, ESQ., DIRECTOR, EXECUTIVE
OFFICE FOR UNITED STATES ATTORNEYS, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Melson. Thank you, and good afternoon.
Chairman Sanchez, Acting Ranking Member Franks and Members
of the Committee, I am Kenneth E. Melson, the director of the
Executive Office for United States Attorneys. And I am very
pleased to be here today to represent the outstanding men and
women of the 94 United States attorneys' offices. And on their
behalf, I thank you for your continuing support of their
efforts.
I have been honored to serve as the director of EOUSA since
May 2007, and I understand the significance of the position to
the Administration of justice in this country.
When I came to EOUSA after a 20-year career as a first
assistant U.S. attorney, appointed by both Democrats and
Republicans, I told my staff when I first met them in the Great
Hall of Justice, that we would make no personnel decisions
based upon political considerations, and that we would treat
every individual, regardless of whom they are or what they
represent, with dignity and respect, and that we would not
discriminate on any basis other than merit.
In that vein, I have committed EOUSA to become the center
of excellence for the United States attorneys community. I
believe we have accomplished that, and we will continue to
pursue excellence based upon the experience and competence of
career employees and prosecutors, who understand that the
department's mission is to do justice, to follow the rule of
law and to lead by example.
Let me tell you a little bit about the great work of the
men and women in the U.S. attorneys' offices.
First, with regard to immigration, we continue to
experience heavy workloads for the five U.S. attorneys' offices
along the southwest border, where immigration issues pose a
huge challenge. In 2007, these five offices alone filed almost
12,000 felony immigration cases, or 66 percent of the totals
from all 94 offices. Those case totals do not include the tens
of thousands of misdemeanor immigration cases prosecuted each
year--again, principally by those five offices along the
southwest border.
Given this heavy immigration workload, Congress'
appropriation of $7 million last year for law enforcement along
the southwest border was put to good use. In each of the
districts, law enforcement prosecutors, the marshals, the
courts and defense attorneys are working closely together to
meet the challenges of a heavy caseload. EOUSA is there to
assist in any capacity that it can.
But our work in the immigration area has not infringed on
important work in other prosecution priority areas of the
department. For example, with regard to the department's top
priority, prosecuting and preventing terrorism, the United
States attorney's offices have continued to prosecute
significant domestic and international terrorism and terrorism-
related crimes.
However, we should not measure success in the
counterterrorism area simply by counting cases or convictions.
The department's mandate is not only to prosecute those who
commit terrorist acts, but to disrupt and prevent terrorist
acts. The latter activities do not necessarily result in
charges or convictions.
In addition, our 94 offices are closely coordinating with
the FBI and the State and local law enforcement to increase our
intelligence sharing and emergency preparedness. My written
submission illustrates the other great work and successes of
the U.S. attorneys community.
But I want to stress that we are committed also to
increasing the collection of debts owed to the Federal
Government and to victims. In fiscal year 2007, the United
States attorneys offices collected over $1.7 billion in
criminal debts on behalf of victims of crime. And may I say
with a note of pride, that we were awarded the Crime Victims
Fund Award for 2007 by the Office of Victims of Crime for our
creative implementation of the Treasury Offset Program.
In 2007 alone, almost $6 million in fines and restitutions
was recovered in this program alone--money that otherwise would
not have been recovered for the victims of crime.
One of the most disturbing things I have had to face as
director is the number of urgent reports I receive concerning
threats to AUSAs. Recently, two AUSAs have been assaulted in
courthouses, and one AUSA has had to be relocated, because of a
serious, credible threat on her life. Despite threats to them
and their families, AUSAs continue to be dedicated to the
mission of the department and the cause of justice.
And EOUSA has endeavored, within the current limitations,
to fairly compensate our prosecutors for their outstanding
performance by exploring ways to pay for performance through
incentives, performance awards, bonuses and revision of the
credible service calculations, and our work is ongoing.
Dedication, hard work and commitment by these individuals
deserve recognition.
Thank you, and I look forward to answering your questions.
[The prepared statement of Mr. Melson follows:]
Prepared Statement of Kenneth E. Melson
Ms. Sanchez. Thank you for your testimony, Mr. Melson.
At this time, I would invite Ms. Williams to give her
testimony.
TESTIMONY OF HEATHER E. WILLIAMS, ESQ., FIRST ASSISTANT,
FEDERAL PUBLIC DEFENDER, DISTRICT OF ARIZONA, TUCSON, AZ
Ms. Williams. Thank you, Madam Chair.
Ms. Sanchez. Can you please turn your microphone on?
Ms. Williams. There we go.
Thank you, Madam Chairwoman, acting Ranking Member Franks
and the other Members of this distinguished Committee. Thank
you for inviting me here.
I am Heather Williams, and I am the first assistant for the
Federal Public Defender's Office in the District of Arizona.
And while I work out of the Tucson office, I help to supervise
all the offices in the district.
Monday through Friday, in four to five Federal courtrooms
along the southwest border, anywhere from 30 to 100
undocumented immigrants a day face criminal charges. These are
misdemeanor or petty criminal charges. Most of these defendants
speak Spanish, and there are a few who speak native dialects
from where they are from.
Occasionally, we will find someone who is actually a United
States citizen, or who might actually have permission to be in
the United States. Sometimes we find defendants who are not
mentally competent to participate in the criminal process. But
given the fact that these cases are resolved all in a day,
sometimes we are afraid that we missed some of the people in
these categories.
The courtroom itself smells pungently, because the
defendants are wearing the same clothes they were arrested in
and had been walking through the desert in, for anywhere from 1
to 2 days to 3 days before.
We have anywhere from 3 to 30 minutes, depending on what
courtroom you are in, for these clients to meet with a lawyer.
And during that time, the defendants have to be advised of what
they are being charged with. They have to be advised of their
various constitutional rights and the penalties they face if
they go to trial or if they plead guilty.
We have to also get from them information about their
family, about any mental or medical conditions they may have,
any education they may have that may affect their ability to
understand the process. And we have to decide whether or not
they want to plead guilty that day or if they want to insist on
a trial.
Most of these defendants end up pleading guilty, and they
end up being sentenced the very same day, as well. And that is
why this program is called Operation Streamline--to stream them
through the court system.
It is Border Patrol who decides who to charge and what
charges they will face. In the courtroom is one prosecutor, and
in the Tucson courtroom, that is an especially assigned
assistant U.S. attorney, because we had not enough prosecutors
to go ahead and prosecute these petty and misdemeanor offenses.
And so, we have somebody who has been specially deputized from
Immigration at the Department of Homeland Security to handle
Operation Streamline cases.
And during the court, they decide whether or not charges
will be dismissed. They decide what sentences to ask for, and
they decide what kind of plea agreements to give to those
people who are charged with a combination felony and
misdemeanor, but are pleading to a petty offense with a
stipulated written plea agreement.
On Monday, before I came here, the ``Tucson Citizen,''
which is considered Tucson's conservative newspaper, had an op-
ed about Operation Streamline. They called the process a cattle
call. They said, and correctly so, that the courts will pay
about $2.5 million to criminal defense lawyers in Tucson alone
to represent only Operation Streamline defendants.
They point out that Operation Streamline is not a deterrent
to these immigrants coming across the border, and that instead,
it may be more effective--the State of Arizona's immigration
laws and employer sanction laws, and the downturn in our own
economy and the reduction of housing construction in the area.
It has said that it would rather have assistant United
States attorneys instead of prosecuting this cattle call
prosecution of petty and of flip-flop immigration offenses, and
have them devote themselves instead to prosecuting drug
prosecutions, which are only one-fourth of the immigration
felony prosecutions in Tucson, or white-collar crimes, which
have been put on the back burner.
I want to thank you for inviting me to speak to you today.
[The prepared statement of Ms. Williams follows:]
Prepared Statement of Heather E. Williams
Ms. Sanchez. Thank you, Ms. Williams. We certainly
appreciate your testimony.
At this time, I would ask Mr. Delonis to begin his
testimony.
TESTIMONY OF RICHARD L. DELONIS, ESQ., PRESIDENT, NATIONAL
ASSOCIATION OF ASSISTANT UNITED STATES ATTORNEYS, LAKE RIDGE,
VA
Mr. Delonis. Madam Chairwoman, Ranking Member, Mr. Franks,
and distinguished Members of the Subcommittee, my name is
Richard Delonis. I am an assistant United States attorney in
Detroit, Michigan, and I have served in that capacity for a
little over 38 years at this point.
However, I am not here today as a representative of the
Department of Justice, but here in my capacity as the president
of the National Association of Assistant United States
Attorneys, a professional association that has been in
existence approximately a dozen years now.
I would like to start my remarks by perhaps looking at some
good news. And that is that in the past year or so, since
Attorney General Mukasey took the helm of the department, there
has been a discernible increase in the morale of the employees
at the department, both at Main Justice and in the field. And
there is a feeling that the affairs of the department and the
cause of justice is being pursued in a professional manner and
without any notion that partisanship considerations play a
role.
In other words, the troops in the field have a renewed
sense of confidence and a strong feeling that things are moving
in the right direction.
Additionally, I would like to take a moment to commend the
Executive Office for United States Attorneys. Under the able
leadership of Mr. Melson, that office has been performing well.
We have noticed that since Mr. Melson has arrived on the scene,
there has been an improved sense of collegiality and cordiality
between our association and the executive office as we work
together toward the solution of problems and challenges that
concern both the executive office and the membership of our
organization.
Now, having made mention of the good news, I want to turn
our attention collectively to something that is a matter of
grave concern to us, and that is the issue of the physical
security of assistant United States attorneys.
The recent brutal attack on a female Federal prosecutor in
a Brooklyn courtroom by a criminal defendant awaiting
sentencing sadly illustrates the vicious harm that awaits
assistant United States attorneys inside and outside the
courtroom.
In recent years, the potential for violence and retaliation
has increased, and the number of threats made on Federal
prosecutors has tripled between the years 2002 and 2007.
The assault in the Federal courtroom in Brooklyn was
captured on the security camera, and a film clip of that was
later posted on the Internet, and we have that for the
Subcommittee at this point. It will only take a moment, and I
would ask that we run that film clip at this point.
[Begin video clip.]
Mr. Gracia. At the beginning of March, this dramatic scene
was captured by a security camera in a New York City courtroom.
Video of the attack was widely circulated on the Internet. And
now, the man seen here has been sentenced to life in prison.
Thirty-seven-year-old Victor Wright dealt massive amounts
of cocaine as part of a murderous drug gang. This was at his
original sentencing, when he pounced on a prosecutor, trying to
cut her with a razor. As a precaution, Wright appeared
Wednesday from jail via closed-circuit monitor. He declined to
speak.
Mike Gracia, the Associated Press.
[End video clip.]
Mr. Delonis. I think what that illustrates is that criminal
defendants today are increasingly bold and willing to attack
the prosecutor, not just on the outside, but even inside the
confines of a courtroom where there is security present.
Thankfully, in this particular case, the prosecutor was not
seriously injured, but she was pretty badly shaken up by the
experience.
The matter of safety is very important to us. We find
ourselves at the front line as prosecutors--in court, going
before the jury, dealing with some of the most violent, vicious
people who are part of our society.
And it is our task to present the evidence to a jury and at
the conclusion of a trial, stand there and call for the
conviction of these individuals. And upon conviction, we stand
before a judge and argue for the incarceration of these
dangerous people. It is no wonder that, in many cases, they
take it very personally and seek to get revenge in whatever
fashion.
The types of revenge that we sometimes see vary. And one
that is particularly troubling to me is a recent event within
about a month or so in my own office. A friend of mine, who had
a person under criminal investigation on a drug offense, had an
incident where he found out that this particular subject wanted
to take vengeance on him, but he had a different approach. He
was not going to come after the prosecutor. The plan was to
murder one of his children.
And as the prosecutor put it to me, he said, you know,
there is nothing more difficult as a dad than to sit down at
your kitchen table with your children and try to explain to
them that someone wants to kill them.
So, that is what we are facing today. Assaults have
increased, threats have increased. And in the good fortune of
this particular case, that plan was discovered, and the plot
that the person had been hatching was thwarted.
Security is a grave concern. We are thankful to the
Congress for the Court Security Act, but that is just the first
step. We feel there is more that needs to be done.
I thank the Subcommittee for its time.
[The prepared statement of Mr. Delonis follows:]
Prepared Statement of Richard L. Delonis
Ms. Sanchez. Thank you, Mr. Delonis.
At this time, I would invite Professor Turley to give his
oral testimony.
TESTIMONY OF JONATHAN TURLEY, ESQ., THE GEORGE WASHINGTON LAW
SCHOOL, WASHINGTON, DC
Mr. Turley. Chairwoman Sanchez, acting Ranking Member
Franks, distinguished Members of the Subcommittee, it is a
great honor to appear before you and with this distinguished
panel to talk about so many important issues. I am here just to
speak about the performance of the Department of Justice in
terrorism cases.
And before I start, because my testimony is critical of
that record, I want to emphasize that I know no one, no lawyer,
no citizen, who does not want terrorists to be prosecuted and
punished. Particularly in this area, terrorism is no
abstraction. American Airlines Flight 77 crashed right behind
my car as I was passing the Pentagon, killing a friend. And my
family lives within minutes of the Capitol. All of us want
prosecution of terrorism.
And I also want to note that my criticism today is not a
criticism of U.S. attorneys or prosecutors generally. I have
worked for now approaching 30 years--it is hard to imagine--as
a criminal defense attorney. And the vast majority of Federal
prosecutors I have worked with have been honorable people and
talented lawyers.
And the criticism I have today is a very small percentage,
quite frankly, of prosecutors and how they have handled
terrorism cases. I have handled terrorism cases and national
security cases on the defense side, including cases I am
currently lead counsel in, in the Eastern District for Dr. Ali
Al-Timimi and Dr. Sami Al-Arian.
I want to cut to the chase and to be clear. I think the
record is clear. I think that the Bush administration has
assembled the worst record of prosecution of terrorism of any
modern presidency. And I must say, I think that is rather
objectively established.
And what is troubling is that we have seen since 2001, a
padding of the record of terrorism cases. As many of you may
know, I write for ``USA Today'' as a columnist. And many of us
who write for the newspapers have written for years now in
criticism of the reporting done by the Department of Justice on
terrorism cases.
And yet, the same problems that have been identified over
and over again continue to appear in the reporting of these
cases. That is, they have included cases that are not terrorism
cases, and that has very significant impacts, which I am going
to talk about in a second.
What is clear is that the Department of Justice has long
had an incentive to cite a lot of terrorism cases. I mean, the
fact is that former Attorney General John Ashcroft came to the
Congress in the first of these reports and said that the
Patriot Act had proven al Qaida's worst nightmare.
And he said that, ``I have a mountain of evidence that the
Patriot Act continues to save lives.'' And he cited in that
report 310 cases. And when you looked at the cases, you found
out that a lot of them were standard immigration cases--cases
that later on even the Department of Justice admitted should
not have been in that group.
And yet, it has continued, where we have seen, for example,
in Nevada, a couple that burned down their pizza parlor for
insurance purposes was listed as a terrorist case. It also
turns out--and this worries me for Congressman Cannon, who is a
friend of mine--it worries me that Utah is a hotbed of
terrorism. In fact, there are more terrorists per capita in
Utah than any other State, apparently, because they have been
number one and have been uncovering terrorists all over the
State.
And when we have looked at it, it turns out that many of
those terrorists have proven to be people with false driver's
licenses, general fraud cases, immigration cases. It is,
indeed, perfectly safe to go to Utah.
The question is, why do you do it? Why do we have the
continual gaming of the system?
And the answer is, there is an incentive to do it. That is,
you have a counterterrorism program that has increased in funds
from 2001 from $737 million to $3.6 billion in 2006. And the
Justice Department continually references these numbers to
support that system.
My objection to this is primarily not just simply the fact
that you have a distortion of the record, but you also have
many cases that are overcharged. And you also have the creation
of a false image. We all have to find a balance between privacy
and security. We all recognize it is a balance.
But in order to do that, we need to understand what the
problem is. And we cannot do that, if there is this
representation of a far greater number of terrorism cases than
actually exists.
In my testimony, I point out that the Department of
Justice, if you strip away the non-terrorism cases, has
actually performed fairly dismally, quite frankly. Even by
their own figures, when you look at the terrorism cases, it is
around 60 percent conviction rate.
Most, by the way, prosecution offices--not most, but many
prosecution offices--have a 90 percent or more conviction rate.
It is a very high conviction rate.
But actually, it is the performance in major terrorism
cases that has proven to be rather bad. And I have cited many
of the major prosecution cases that the Department of Justice
has cited since 2001 as being major prosecutions. These are
prosecutions where they spend a lot of money on. And they lost.
And what is notable about these cases is that they occur in
very conservative jury pools. For a defense attorney, these are
areas where you frankly do not want to try a case, if you can.
So, what I encourage you to look at is why they have lost
these cases, and also, why there is this need to pad the
record. Ultimately, I am afraid that we see in these figures a
certain self-perpetuating act, to increase terrorism numbers,
which began with memos from John Ashcroft in encouraging U.S.
attorneys to produce a body count.
And in conclusion, I want to note that there is a lot of
criticism about that culture of a body count. We saw in Vietnam
how corrosive a body count approach can be. And that is what we
have today. It is a body count policy. And I think that has had
a terrible effect upon the success of the Department of
Justice, which, once again, has many, many committed and
talented prosecutors, many of whom are on the other side of me
in a courtroom, I regret to say.
But thank you very much for allowing me to speak to you
today.
[The prepared statement of Mr. Turley follows:]
Prepared Statement of Jonathan Turley
Ms. Sanchez. Thank you, Professor Turley.
We are now going to begin the questioning. And I will begin
by recognizing myself first for 5 minutes of questions.
Professor Turley, according to a study by TRAC at Syracuse
University, many international terrorism cases involve lesser
crimes, like immigration violations or fraud. And the median
sentence for those convicted was 20 to 28 days, with many of
them receiving no jail time at all.
How do you explain the fact that, in general, the
punishment for these cases has been relatively minor, given
that they are ``terrorism cases''?
And I think you sort of alluded to it in your testimony
about their being an incentive. And I am curious to know what
your thoughts are in terms of the incentive.
Mr. Turley. Well, we know that there has been padding of
the record, starting in 2001. There has been a lot of
documentation to the inclusion of immigration cases in these
numbers--a lot of general fraud cases, racketeering cases that
are not terrorism cases.
In fact, in a recent study by NYU, it showed that, of the
632 individuals identified by the Department of Justice as
terrorism cases, only 202 were actually charged on terrorism
statutes.
And so, I think that there is a certain gaming of the
system in that regard.
Ms. Sanchez. But why the padding? I mean, you said that
there is an incentive to sort of pad. What is the incentive?
Mr. Turley. Well, you know, from----
Ms. Sanchez. Is it the glory of saying we are convicting
terrorists? Or, I mean----
Mr. Turley. No, not that much bravado. I think it is,
unfortunately, more calculated.
Attorney General John Ashcroft asked and received
expansions of authority with the Patriot Act. And these reports
became a justification of that, to show that we did have a
terrorism problem in this country. And I do not want to
belittle--in my next statement, I do not want to be taken as
belittling terrorism in this country, because it is not.
But the fact is, we have not found a huge terrorism problem
in this country. Most of the terrorist cases we have, have
proven to be unhinged or very isolated individuals. And it is a
good thing we prosecuted them.
But there has been an effort to suggest that it is a much
broader problem, and I think the most obvious reason for that
is to justify the expansion of these laws, and the expanded
budget.
Now, it does not mean that, if there is a more honest
portrayal, we are going to argue for a cut-down in budget. But
what it does mean is that we cannot have a policy discussion,
unless we get real figures.
Ms. Sanchez. I appreciate your answer.
My next question is for Ms. Williams.
You stated that you are concerned about the misdirection of
resources, because each day your office's lawyers spend on
misdemeanor border crossing cases, they are not talking about a
drug case, a sex crime, a murder, assault or any number of
white-collar cases. And the same is obviously true of the
prosecutors.
What do you think should be done to ensure that prosecutors
and Federal defenders have the resources that they need to
handle all types of cases in their respective offices?
Ms. Williams. I think that we are very blessed, because not
only has my boss, Jon Sands, the Federal public defender,
recognized the need within our office, but also the Office of
Defender Services has been very proactive in getting us the
money and the approval for additional positions.
The difficulty is in finding qualified people. I know that
that has also been a challenge in talking to some of the
assistant U.S. attorneys, as well.
But if you have somebody who is having to spend a lot of
time on immigration cases, and those immigration cases are not
assessed the same way and given the same weight as the many
other cases. And these cases can be very complicated in terms
of trying to work one's way through the deportation process, as
well as its sentencing, trying to figure out if somebody is
actually an aggregated felon or not. There is a lot of time
spent in researching and investigating that.
If you are spending the time then in all these immigration
cases, then other cases which by comparison can also be much
more complicated, those tend to get put on the back burner, and
they get continued. And so, you have this trickle down effect
from prosecuting the criminal immigration cases, that then
affects the drug cases, and, as we saw in Arizona, the white-
collar crime cases.
I cited in my written statement about how we had a meeting
with Paul Charlton, who was then the U.S. attorney for the
District of Arizona in 2006. One of the lawyers who attended
the conference that Mr. Charlton had said, what about these
white-collar cases? I have been representing a couple of
individuals for a couple of years now, who are being
investigated. When are they going to get charged?
He said, I don't know, because Washington has told us we
need to focus on immigration.
Those people were charged just last week.
Ms. Sanchez. Thank you. Mr. Melson, I am very interested in
this line of questioning about the immigration cases.
Ms. Williams in her written testimony said that under
Operation Streamline defense lawyers are given between 3 and 30
minutes: to meet and educate the client, herself; decide
whether the client is competent; determine whether there is a
defense of citizenship or duress, a lack of intent, a pretrial
motion to suppress evidence or statements to the constitutional
violations; learn personal information, which might mitigate a
sentence; consider the client's option not just in the criminal
case, but also any immigration consequences or release
available, such as asylum; and advise a client on whether to
plead guilty or to go to trial.
And there have been instances in which immigration cases,
they have taken defendants 10 at a time to plead. And I thought
it was ironic that Ms. Williams used the term cattle call,
because literally at a place where cattle is held, they brought
defendants in from the morning until the night, and 10 at a
time before a judge to plead in immigration cases.
Do you believe that defense lawyers can adequately and
ethically execute the duties described to his or her clients in
3 to 30 minutes' time?
Do you think that that is adequate due process?
Mr. Melson. Thank you. The Department of Justice, and
particularly the U.S. attorneys in the field, are very
committed to making sure that due process is accorded to each
and every single defendant that passes through that court.
Earlier this year, I went down to southwest border--in
fact, I have been down there on several occasions now--to look
for myself and get a first-hand view of what was going on down
there. And while doing it, we met collectively with the judges,
the Border Patrol, public defender's office, the prosecutor's
office, the court clerks, and others. I remember the day when
we sat around the courtroom and met with all the magistrate
judges, I believe.
And there is concern about the number of cases that are
going through the courtroom. It sounds like perhaps the public
defenders need more resources, if they feel that they cannot
handle the number of cases that are being prosecuted.
But there is another avenue, and that is, they are free, if
they believe that due process is not being accorded to their
clients, to make the appropriate motions before the magistrate
judge or the district judge, suggesting those deficiencies.
I do not believe, all across the southwest border in the
several areas in which Operation Streamline is underway, that
there have been any rulings that the defendants are being
denied their due process rights.
Ms. Sanchez. I am just troubled by some of the accounts
which I have read. And I will probably talk with you further
about that.
My time has expired.
At this time, I would recognize Mr. Franks for 5 minutes of
questions.
Mr. Franks. Well, thank you, Madam Chair, and thank all of
you for being here.
Just for the record, I would like to suggest that, during
the hearings that we have had here in the last year-and-a-half
related to the attorneys, the U.S. attorneys, I have seen no
evidence whatsoever that any U.S. attorney based their
prosecution or non-prosecution of a criminal act on fear of
being fired, or that anyone was fired for either of those two
things. I have seen no evidence to that effect.
And Mr. Melson, just for the record, do you know of anyone
in the department, any U.S. attorney, that was fired or unduly
pressured by the Administration to prosecute in some fraudulent
way, or not to prosecute someone who deserved it for a criminal
act?
Mr. Melson. I have no personal knowledge of that
whatsoever. And as you know, I was not the director at the time
that these events occurred. But I have no personal knowledge
concerning that whatsoever.
Mr. Franks. I understand. Thank you, sir.
Related to terrorism, you know, if one listens to the
terrorist leaders, al Qaida leaders themselves, they talk often
of trying to gain a base in a Muslim land with a Muslim
authority in which to launch terrorism across the world.
In the last 7 years, or approximately that amount of time,
the United States has not had an act of terrorism, which is
distinctly in contrast to the previous 7 years prior to that.
And it occurs to me that perhaps some of the terrorists have
been a little bit busy lately, and that that might account for
some of the drop-off.
And I just think that, with all of the challenges that the
department has had, that sometimes we have not looked at what
you have done right and what we can do to further assist you in
that regard. And I just want to make that clear.
Now, I will ask a question, Mr. Melson, related to perhaps
some of the more partisan areas.
Did Countrywide Financials VIP or friends of Angelo
sweetheart loan program come up in the department's Operation
Malicious Mortgage investigation? Did that come up in your
investigation at all?
Mr. Melson. Unfortunately, I do not know the answer to
that. We certainly can get back to you on that.
Mr. Franks. Would you do that? And would you be able to
tell me today that the department is going to make sure that
that investigation occurs, or, if there is clear evidence
there, that you will pursue that?
Mr. Melson. That will be determined by the U.S. attorney in
the venue in which the case occurred. I have great confidence
in our U.S. attorneys, and that if there is a crime that has
been brought to their attention, which meets the principles of
Federal prosecution, that they will pursue it vigorously.
Mr. Franks. And Operation Malicious Mortgage involved more
than 50 U.S. attorneys' offices, Main Justice, the FBI and at
least eight sister agencies. What challenges did EOUSA and the
U.S. attorneys' offices face in the coordination and execution
of this effort? What kind of challenges did you face?
Mr. Melson. Well, there are lots of challenges that we face
in a large operation like that. EOUSA has a legal programs
office that has experts who are detailed to our office to work
on various aspects of the criminal law, one of them being
fraud. And we work with and try and coordinate and facilitate
the various cases throughout the country.
Lots of them may involve more than one jurisdiction. And we
have to do a lot of deconfliction. We have to look at making
sure that our witnesses are not impeded, or that people are not
charged duplicatively in different jurisdictions.
One of the reasons that we have had such success here, and
why it is such a success, is because of the flexibility of the
U.S. attorneys in being able to direct their resources to
national issues and problems. And they have done that in the
mortgage fraud area, and which might be part of an explanation
as to why, if, in fact, some of the other white-collar crime
prosecutions have gone down, it may be because of a change in
emphasis on those prosecutions.
And certainly, we hope that the President's budget is
passed, so that we can supplement our resources in white-collar
crime, so that we can continue to do the traditional crime as
well as the mortgage fraud.
Mr. Franks. Well, Mr. Melson, just the last question.
Professor Turley, some of his comments I found were legitimate
concerns. But at the same time, I wanted to ask you, related to
terrorism convictions, I know that the percentages have been
down.
But even related to the 1993 bombing of the World Trade
Center issue that was before your time, are there special
circumstances, special difficulties that make perhaps terrorism
cases less likely to be convictions?
Mr. Melson. Well, there are lots of issues that are
involved in a terrorism case in which terrorism charges are
levied against the individual. A lot of that is with respect to
classified information. Some of that cannot be released, cannot
be used in court, because it will indicate or show resources
and methods that we use in the field. And we do not want to do
that.
As a result, sometimes the full array of evidence cannot be
presented in a case.
Mr. Franks. Well, thank you, Mr. Chairman. My time has
expired.
Mr. Johnson. [Presiding.] I believe I am, having been
called upon to Chair in the absence of the Chair, I believe it
would be my opportunity now to ask questions, and I will give
myself the 5 minutes that everyone else gets, though I am
tempted to waive that rule for purposes of my own questioning.
But Mr. Melson, you really did not give a good, square
answer to the Chairwoman's question. And you really do not mean
to intimate that it is possible within the space of 3 to 30
minutes: to meet and educate the client and yourself about the
client's case; to decide whether or not the client is
competent; to determine whether there is a defense of
citizenship or duress, or determine whether or not a pretrial
motion to suppress due to constitutional violations is in
order; to consider any personal information that could mitigate
the sentence of the accused; to consider any immigration
consequences that may ensue from a guilty plea or a conviction;
to determine whether or not the individual, say, may have been
fleeing from right-wing paramilitary oppression in a country,
or perhaps from Hugo Chavez, the monster of South America, that
everyone thinks is down there?
Can a defense lawyer possibly within the space of 3 to 30
minutes--is that enough time for a defense lawyer to be able to
make those basic determinations? And yes or no I think will
suffice.
Mr. Melson. Well, unfortunately, it cannot be answered in a
yes or no, because what you are doing, Mr. Johnson, is mixing
different types of cases. What I think she is talking about----
Mr. Johnson. Okay, well, then, hold on. Hold on. Since you
do not want to----
Mr. Melson [continuing]. Is Mexicans that are coming
across.
Mr. Johnson. Since you do not want to give me a yes or no,
let me ask the two other witnesses here.
Mr. Delonis, do you think it is possible? Yes or no?
Mr. Delonis. Is it possible? Yes or no.
I think, as a plain hypothetical, I could say that there
might be a case somewhere, sometime where the answer would be
yes.
Mr. Johnson. But that would be--you would have to be
stretching to find such a case, I take it.
Mr. Delonis. I have never been in that situation. That is
why I am addressing it as a hypothetical.
It is certainly not the desirable situation.
Mr. Johnson. Okay. Good enough.
Professor Turley, what is your opinion?
Mr. Turley. Well, I cannot imagine how you can possibly
consult with a client, even in a special program that has a
large number of similarly situated defendants. Ms. Williams has
pointed out, there is a variation in this group. And as an
attorney, you have an ethical obligation to identify the unique
aspects of your client's case.
Mr. Johnson. Is it possible to do that within 3 minutes to
30?
Mr. Turley. I doubt it, particularly when you are dealing
with somebody who is unfamiliar with the legal system,
unfamiliar with you.
Mr. Johnson. And perhaps through an interpreter, as well.
Mr. Turley. That is right.
Mr. Johnson. Okay, well let me ask Ms. Williams. And excuse
me for interrupting, because I only do have 5 minutes.
Ms. Williams, what is your take on that?
Ms. Williams. I know that our lawyers--I know that our
lawyers are quite concerned that their bar licenses are on the
line for being consistently ineffective assistance of counsel.
We are fortunate in Tucson in that the court has backed us
up in limiting our representation each day to six people. That
is not happening in Yuma, that is not happening in Del Rio, and
that is not happening in Laredo. And in fact, in Del Rio one
lawyer may be representing as many as 80 to 100 people a day.
And so, you get much more the 3-minute situations than the 30-
minute situation that we may have in Tucson.
We are concerned, because our office also takes duty calls.
Mr. Johnson. Okay. Let me stop you right there. I want to
ask Mr. Melson, and this will be my last question.
If there were such a situation where a--well, first I will
say that, in the last 25 years prior to 2006, only 25--excuse
me, only 10--U.S. attorneys were forced to resign, in the last
25 years prior to December of 2006. All were fired for cause
and under a cloud of scandal.
But then, on 1 day, December 7 of 2006, seven were forced
to resign, not for cause, but just at the will of the executive
who appointed them--and another in June of 2006 and another in
January of 2006, so, for a total of nine. And there have been
questions about whether or not they were forced to resign,
because they were not ``loyal Bushies.''
And since that time, there has been a--or during that time,
I assume that morale was lower among the assistant U.S.
attorneys, many of whom may have been hired for political
reasons, or with political considerations involved in their
hiring, of career U.S. attorneys.
Are you familiar with a drop in morale during that time
period among U.S. attorneys?
And I will ask the same question of Mr. Delonis.
Mr. Melson. Well, it is hard to say that the morale dropped
uniformly. I am sure that there were morale issues within the
districts in which the U.S. attorneys were fired, because of
the associations between the U.S. attorney and the AUSAs.
I do not believe that it was overwhelming in all districts.
I was in a district at that point, and I do not think that the
firing of those U.S. attorneys necessarily affected the morale
of people who were not associated with those districts.
Mr. Johnson. All right.
Mr. Melson. I can tell you, however, that the morale has
increased tremendously since--over the last year or so.
Mr. Johnson. All right. Thank you, sir.
And your take, Mr. Delonis?
Mr. Delonis. Mr. Melson I think is quite right when he
points to the fact that it is going to be mostly impacting the
districts where the U.S. attorney was being asked to resign.
And other districts that are more remotely connected to the
situation would not experience the same type of impact on
morale.
But speaking for myself, for instance, I love my job. I
have been doing it for over three decades. And I love the
Department of Justice and serving the cause of justice.
And any time that our office--and I am speaking generally
now--gets this kind of publicity, this kind of focus on it,
these kinds of issues being raised, it is troubling. It is
troubling. It is disconcerting, because it is a negative kind
of light being shown on an institution that we love, and that
we work for and we have dedicated our careers to.
Mr. Johnson. All right. Thank you, sir.
At this point, I will turn it over now for questions----
Mr. Jordan. Thank you.
Mr. Johnson [continuing]. To the gentleman from North
Carolina----
Mr. Jordan. Ohio.
Mr. Johnson [continuing]. Mr. Jordan. Ohio, I am sorry.
Mr. Jordan. I have been called a lot worse.
Mr. Johnson. I am sorry.
Mr. Jordan. Appreciate the Chair.
I want to start where Congressman Franks left off. He had
talked about Operation Malicious Mortgage. I want to ask you
about what some would call Operation Generous Mortgage.
Two U.S. senators, two former Cabinet members, a former
ambassador to the United Nations received loans from
Countrywide in a little-known program that waived points,
lender fees and company borrowing rules.
You are all accomplished individuals. As professionals and
using your professional judgment, do you think, based on what
you have heard--which is, frankly, probably no more than what
we have heard--do you think this at least warrants some kind of
oversight, some kind of investigation by the United States
Congress?
And we will just go down the line, and you can give your
thoughts.
Mr. Melson. Well, unfortunately, I do not know enough about
the underlying facts to say one way or the other. All I can do
is trust that our offices do not prosecute people for
political-based reasons, that if there is crime that has been
brought to the attention of the FBI or the U.S. attorney, that
they will take the appropriate steps under the circumstances,
depending on the nature and the quality and the reliability of
the evidence.
Mr. Jordan. Do you think it at least, as I said, warrants
some kind of further examination?
Mr. Melson. I am sure, if that information that you have
disclosed has been brought to a U.S. attorney, they will
examine it carefully.
Mr. Jordan. Ms. Williams?
Ms. Williams. I honestly do not know.
Mr. Jordan. Mr. Delonis?
Mr. Delonis. I think it would be presumptuous of me from
the executive branch to tell the legislative branch what it
should do in terms of its oversight responsibilities.
Mr. Jordan. We will go to the guy who is not an executive
branch man.
Mr. Turley. Well, I think that anyone who has a better
mortgage than I have should be investigated----
Mr. Jordan. There you go.
[Laughter.]
Mr. Turley [continuing]. As a general rule. But I honestly
do not know much about this allegation. And I do not think I
could say it certainly deserves to be investigated. But, you
know, there is a process.
I have been a critic of how the department--how the
Congress handles ethics investigations in the past, which I
think is not a particularly good record. But I cannot really
comment on this, because I am not too sure of the facts.
Mr. Jordan. Ms. Williams, to go back to your testimony, you
talked about public defenders, 80 to 100 cases a day. And, you
know, obviously, that seems like a lot. But what is the answer?
I mean, certainly you are not suggesting, as the Chair did,
I think, in her opening comments, that somehow we are doing--we
have got too much focus on prosecuting illegal immigration.
That wouldn't make sense to me not to prosecute crime that is
taking place.
So, is the answer you need more people, you need more
money? Is it budgetary concerns? Or what is the answer to deal
with the dilemma you have cited?
Ms. Williams. The answer to the dilemma is to come up with
a comprehensive immigration policy that, as well as a foreign
policy, that is going to inspire the people to stay in their
country of origin and not get into such a desperate situation
that they feel they need to leave their country, their family,
the language that they speak and come to someplace where they
don't know anybody, where they do not speak the language and
they don't have promise of a job, but they have a hope that
something is going to be better.
We are at the tail end of it. The best thing to do is to
nip it at the bud and find the source.
Now, at the other side of your question is, should we not
be prosecuting people who are violating the law? It is the
ethical obligation of the prosecution to do justice. And when a
prosecutor has a choice between, say, charging, investigating
and pursuing a drug smuggler with 500 pounds of marijuana or
more, or somebody who has come across the border for the first
time who is just trying to find work, and you have to figure
out how to best employ your resources, I would suggest that
prosecuting the first-timer across the border is not the way to
use those resources.
Mr. Jordan. I mean, I understand we certainly want to go
after the drug smuggler and the drug dealer and the terrible
things associated with all that. But I think the American
people would say you prosecute crime.
I understand there are limited resources, but particularly
on this issue, I think they understand how serious it is.
Mr. Melson, comment, if you would, briefly, on Mr. Turley's
testimony. He talked about the padding of the numbers. I think
in your testimony you mentioned, you know, certainly, you do
not just look at the number of convictions, the number of
prosecutions when you are looking at your anti-terrorism
efforts.
But talk to us more about Mr. Turley's testimony.
Mr. Melson. Well, I am a little disappointed that there are
so many people out there that make light of the tremendous
efforts of the U.S. attorneys in the anti-terrorism area. Not
only should you not look just at the number of prosecutions
that are based upon terrorist statutes, but you have to look at
the numbers that Mr. Turley and TRAC and others use to begin
with.
The data that TRAC puts out is unreliable. We cannot
associate their numbers with anything compared to our numbers.
And we have repeatedly told the press and others that those
numbers are not representative and not accurate.
The other thing we can tell you is that our prosecution
efforts in the area of terrorism is much more dynamic than
simply prosecuting a terrorist after the act. I do not think
anybody would want us to wait to a terrorist commits the last
proximate act prior to the terrorist executing or exploding
something, because the danger there is too great.
So, we take a much more comprehensive, multi-prong approach
to anti-terrorism, which means that we try to disrupt and
prevent.
It is true that not every terrorist can be convicted of a
terrorist charge. But not every organized crime criminal can be
convicted of racketeering. Sometimes it is tax, like we saw
with Al Capone.
So, a lot of our efforts go into trying to prevent
terrorism and disrupt the cells by trying to make our
infrastructure more secure, so that people cannot get through
the airports, people cannot get into our nuclear facilities,
they cannot get into the Capitol, they cannot get into this
room.
And we also look at other forms, like material support,
people who are sending money overseas to fund terrorist
organizations that may be plotting against the United States.
We look for things in the programs like our immigration
programs, that are ripe with fraud. If anybody can get into the
United States by committing fraud in one of these programs, how
secure can we be?
It is a holistic approach that allows us to prevent the
terrorism and disrupt these things. And we may never know if we
really do disrupt something or not, because----
Mr. Jordan. Well, what we do know is, since September
11th----
Mr. Melson. Absolutely.
Mr. Jordan [continuing]. Things have been pretty good in
this country, which----
Mr. Melson. Because there has been nothing since September
11th. So, something is working.
Mr. Jordan. Thank you.
Mr. Johnson. The time has expired.
We will next have questions from the gentlewoman from
California, Ms. Lofgren.
Ms. Lofgren. Thank you, Mr. Chairman.
I was recalling the testimony that Chief Aguilar of the
Border Patrol gave to the Immigration Subcommittee about a year
ago. And he said, you know, we have got to get the nannies and
the busboys off to one side so we can focus in on the drug
dealers and the organized crime.
And I think we have actually gone the other direction here
as a matter of--I am not criticizing the individual U.S.
attorneys. But the policy of prosecuting border crossings, if
the statistics are right, you know, we have had a substantial
increase--I guess a 36 percent increase--on the immigration
prosecutions, and a 38 percent decline at the same time in
prosecution for organized crime.
So, it seems to me that, you know, we all know that we have
a world where resources are not limitless, and we have made a
tradeoff to prosecute the busboy, meanwhile letting the
organized crime figure off the hook. And I do not think that is
a tradeoff that most people in America would think is a wise
tradeoff.
I want to talk about what we are doing about violence at
the border. I recently was down in Mexico, meeting with the
interparliamentary session with the members of the Mexican
congress and a bipartisan group from the House of
Representatives and Senate.
And if you look at what is happening in Mexico, we have had
over 4,000 Mexican police officers and army members
assassinated in the last year by the drug cartels. And they are
making a very serious effort. They are reforming their justice
system. They are taking power away from corrupt officials. They
see this as either they are going to have civil society or they
will not.
And their concern about what we need to do is that all the
guns are coming from us. The drugs are coming up here and the
guns are going down there.
So, I was looking at your testimony, Mr. Melson, on the
drugs. And I saw on page 11, you notice that there were two
defendants in southern California who pled guilty to
transportation of firearms to Mexico. All the other cases you
cite are really individual cases.
At the same time, we have had an increase of almost 12,000
felony and misdemeanor prosecutions in the southwest border
region alone, tens of thousands of misdemeanor prosecutions.
Did you cite those two on page 11, because that is it? Or
are there more statistics on that?
Mr. Melson. Well, there are more statistics, and we can get
you those if you would like them.
But let me point out that we are taking, we are doing two
things. Number one, we have a zero tolerance with respect to
violence against our law enforcement officials along the
border----
Ms. Lofgren. That is not the question I am raising here.
Mr. Melson. Okay. And two, we are looking very carefully at
guns and money going south--money that funds the cartels and
guns that increases the violence.
Ms. Lofgren. Well, I do not have much time. I would like
the statistics, because they are not in your testimony. And I
think, if we are going to get--we are partners with Mexico on
this. I mean, there are now machine gun battles in Mexican
border towns, and the concern is that could easily--we have got
to be partners in stopping this. And I do not see any
statistics about what we have done to disrupt the gun trade
down to Mexico.
Mr. Melson. That is part of our southwest border
immigration strategy, a very important part.
Ms. Lofgren. Well, you are not going to get there
prosecuting the busboys.
Mr. Melson. Well, prosecuting the busboys does not prevent
us from doing the other things. The AUSA----
Ms. Lofgren. Well, I think if--let me interrupt, because my
time is very limited--and I think it is pretty obvious from the
decrease in prosecutions statistically that a judgment has been
made, a policy decision has been made.
Let me get to Mr. Turley on--and I would ask unanimous
consent, Mr. Chairman, that the article from the New York Times
about the arrest of nearly 400 primarily Guatemalans in Iowa be
submitted for the record.
Mr. Johnson. Without objection, so ordered.
The material referred to follows:]
Ms. Lofgren. These individuals pled guilty, almost 300 of
them. They pled guilty in teams of 10 over 4 days.
And here is the comment as reported in the Times by the
U.S. attorney. If the immigrants did not plead guilty, Mr.
Dummermuth said he would try them on felony identity theft
charges that carry a mandatory 2-year minimum jail sentence.
And they got 5 months for using somebody else's Social Security
and paying into somebody else's Social Security account that
they will get when they are retired.
Does this seem like a departure to you as an expert in the
criminal justice system from prior policies? And does it make
any sense to you?
Mr. Turley. Well, I think it is a departure. I think that
from--starting in 2001, there was a great deal of criticism
about the padding of the record on terrorism. There is no
question that, under the LIONS Manual, the definition of
terrorism, the Bush administration has included a lot of cases
that were not previously included, and it should not include.
For example, the Joint Terrorism Task Force, one of their
operations was Operation Tarmac, which arrested a whole bunch
of people at different airports. And what they found was what
you will find if you raid many large businesses. You found a
lot of people with false driver's licenses, false employment
applications. It was a very standard sweep.
They counted those as terrorism suspects. They are
obviously not. It is not that it wasn't an important thing to
do, but they were not terrorists, from what we can see.
Mr. Johnson. All right, the gentlewoman's time has expired.
We are going to try to get to both remaining----
Mr. Delahunt. I thank the----
Mr. Johnson [continuing]. Witnesses before we recess. And--
--
Mr. Delahunt. I thank the Chair----
Mr. Johnson [continuing]. We will return after the budget,
after the votes.
The distinguished gentleman from----
Mr. Delahunt. I thank the Chair for describing me as
distinguished.
Let me direct this to Professor Turley, as well as the rest
of the panel.
I find one of the shining lights in the Department of
Justice the performance of the inspector general, Mr. Fine.
Would you agree with that, Professor Turley?
Mr. Turley. Absolutely. The----
Mr. Delahunt. Mr. Delonis?
Mr. Delonis. I would say so.
Mr. Delahunt. And Mr. Melson?
Mr. Melson. He is a fine gentleman, does a good job. But--
--
Mr. Delahunt. Thank you.
Mr. Melson [continuing]. We disagreed with----
Mr. Delahunt. Now, no, you--this is not a filibuster.
Mr. Melson. Okay.
Mr. Delahunt. You answered the question, so don't try to
filibuster.
Mr. Melson. I was trying to answer----
Mr. Delahunt. No, well, you answered it.
Now, the gentleman from Ohio, my good friend, Mr. Jordan,
indicated that, or posed a question to the four of you, would
you consider an investigation or an inquiry, either by this
Committee or by the Department of Justice, into what he
described as the generous mortgage issue?
If the inspector general, Mr. Fine, conducted an exhaustive
review of the hiring practices of the Department of Justice as
it related to a particular program, to attract the best and the
brightest, and concluded that the deputy attorney general at
the time, not only violated departmental policy, but also
violated Federal law, would you give, Professor Turley,
considerable weight to that finding?
Mr. Turley. I would. I read that investigation.
And quite frankly, I should not be shocked much anymore,
but I was shocked, particularly with reference to the Honors
Program. As I think Mr. Melson and everyone else at this table
would say, the Honors Program is a cherished part of the
Department of Justice. And many conservatives and liberals in
the bar have come from it, and they have always protected it
from partisan manipulation.
And I think it is pretty clear that that occurred here, and
it shows the degree to which the Department of Justice has been
politicized and the damage done. And the vast majority of
people that I know in the Justice Department really regret that
trend.
But this, to me, was quite shocking, because it involved
the Honors Program, which has so many proud and very famous
graduates in this city.
Mr. Delahunt. Well, I concur with your sentiments. But here
we have what I would consider an allegation by the Office of
Inspector General, headed by an individual with impeccable
integrity, that concludes that there was a violation of Federal
law.
I would hope that the Department of Justice would consider
appointing a special prosecutor to proceed, to determine
whether there was grounds to move forward with a criminal
investigation, the possibility of securing a criminal
indictment. I am not familiar with what the relevant statutes
would be, but not to give considerable weight to this
particular issue, it is not simply a story, you know, in The
Examiner or the Washington Times or the Washington Post. This
is a serious allegation.
You, Mr. Delonis, indicate that there was low morale. Well,
I can understand why there is low morale. As Professor Turley
indicated, I have great respect for the career individuals who
I think represent this country very well, who do an admirable
job. I support--I think I would suggest a wide array of
benefits that should be conferred upon them.
But when we have this politicization that is ongoing, where
we have an individual--and I am sure she is a nice person--by
the name of Esther McDonald, who graduated in May of 2003, who
on June 13 was recommended to Monica Goodling, who appeared
before this Committee, and then is responsible for monitoring
the selection of individuals to a prize program, I find that
just absolutely mind-boggling. It is incredulous.
It tells me that this particular department was rife with
politics, and that it had to filter down. It devastated the
morale in the Department of Justice, and I am glad to hear that
it has improved. But this really left a stain on the Department
of Justice that I think lingers today. And something has to
occur to restore the confidence of the American people in the
integrity of the Justice Department. That is what this is
about.
A woman who, again--and I say this respectfully--I am sure
never tried a case to a jury, who never even was a second seat
in a trial. And she is reporting to the chief of staff to the
deputy attorney general about recommendations, and references
and allusions to buzzwords like ``social justice.''
My, how dangerous. Someone who embraces the concept of
social justice in America. And of course, she is incompetent
enough to put all this in writing, in an e-mail.
I would not want her advising any one of my----
Mr. Johnson. The gentleman's time has expired.
We will resume with a second round after recess for these
votes. Do we have time for Mr. Cohen?
All right. We will come back for Mr. Cohen and then begin a
second round. If you all will stick with us, we have got two
votes.
[Recess.]
Mr. Johnson. We will call us back to order, and we will
start--or we will continue the first round of questioning with
Mr. Cohen. Thank you.
The distinguished gentleman from Tennessee?
Mr. Cohen. Thank you, Mr. Chairman. And I apologize for my
tardiness in returning.
Mr. Melson, Mr. Delahunt was talking about Ms. Goodling and
her tenure with the Department of Justice. Who took her place?
Mr. Melson. You mean who took her place in the Attorney
General's Office?
Mr. Cohen. Yes, who is the patronage person now?
Mr. Melson. I am sorry, who is the what?
Mr. Cohen. Who is the person in charge of hiring? What was
her job?
Mr. Melson. She had many different jobs, as I understand
it. I was not here----
Mr. Cohen. What was the job that involved her in vetting
people to work in the Justice Department?
Mr. Melson. I am not sure. I was not here. I do not know
where she was.
All I know right now is that, in our office, in the U.S.
attorney's office--I mean the Executive Office for U.S.
Attorneys--we do not make any decisions based upon political
factors for personnel.
When I came over, she was not in the executive office. She
was in the executive office for a period of time, but moved in
other places in the department, where she was----
Mr. Cohen. So, what you are saying is, when she was at the
other places at Department of Justice is when she did all her
special services.
Mr. Melson. I am not--I do not know. She may have done some
in the executive office. I have not--there is an OIG report
that----
Mr. Cohen. Do you know which law school she went to?
Mr. Melson. I have no idea.
Mr. Cohen. Who remembers? It is the religious school in
Virginia that one of the people on television----
Mr. Melson. In Virginia Beach.
Mr. Cohen. Yes, you are getting close, then. Is it bigger
than a--you know, smaller than a breadbox.
Mr. Melson. A breadbox?
Mr. Cohen. Yes, that is right. Regent. Does Regent ring a
bell?
Mr. Melson. It does.
Mr. Cohen. It does. Do you know if the employment of
attorneys from Regent has continued at the same rate it did
when she was there? Or has it decreased? Or does it still
exist?
Mr. Melson. I have no information on that whatsoever.
Mr. Cohen. No information, okay.
Do you know about the--in your papers you talk about some
of the exceptional cases and the projects you all have engaged
in, which I agree have been good, including the projects in
Tennessee on corruption. You are familiar with those cases in
Tennessee?
Mr. Melson. I am familiar with some of them. And you have
some very good U.S. attorneys in Tennessee, in your----
Mr. Cohen. In Memphis we had Mr. Kustoff, who did an
outstanding job. And Mr. Laurenzi is filling in right now, and
he is a fine prosecutor.
Do you know if there have been any efforts in--in Memphis
we went after politicians. And indeed, politicians had shown
conduct that made them deserved of the attention that they
received.
But most of the politicians, although these were stings,
there were some cases that were not stings. And you cannot have
somebody taking a bribe without somebody offering it. And the
people that generally offer the bribes have not been
prosecuted.
Is that true in other jurisdictions, where generally the
politicians are the--which not that they should not be subject
to prosecution, but that the other parties and the private
folks who offer monies or inducements are not prosecuted?
Mr. Melson. Well, we can get back to you with examples of
whether they were or they were not. I have never done a study
to determine that. But I am sure, if they were not part of a
government cooperation, that they may have been prosecuted.
Mr. Cohen. All right. Let me ask this.
Ms. Williams, you are a public defender.
Ms. Williams. Yes, sir.
Mr. Cohen. You have seen the State and government prosecute
drug crimes. Correct?
Ms. Williams. Correct.
Mr. Cohen. Marijuana, meth, crack, cocaine, et cetera?
Ms. Williams. Yes, sir.
Mr. Cohen. Do you think that, in your area, that the
government prioritizes the drugs based on their harm to
society?
Ms. Williams. They do.
Mr. Cohen. And so, they mostly go after----
Ms. Williams. They go after all the drug offenses that they
have jurisdiction over.
However, the exception is going to be--and this may be in
the process of changing--500 pounds or less of marijuana, port
of entry cases. That is, marijuana, 500 pounds or less, that
has been hidden in a vehicle coming through a port of entry,
where the defendant does not possess a gun or does not have a
prior conviction. Those cases, I understand, have either been
prosecuted as misdemeanors, simple possessions of marijuana.
Well, along with the felony, they are given the chance to
go ahead and plead to the misdemeanor or have been handed off
to the State for prosecution.
Mr. Cohen. So, they do meth, and crack and cocaine are more
prioritized.
Ms. Williams. Yes. There is no exception.
Mr. Cohen. Good.
And Mr. Delonis, is that the same thing as you understand
the U.S. attorneys' priorities are?
Mr. Delonis. Pretty much so. And it has been very district-
by-district. Quantities in southern Florida are going to be
larger in terms of what is going to be prosecuted, whereas what
is a big case in Wisconsin is not a big case in Florida, if you
are talking about simply quantities of drugs involved.
And then you are going to have in different areas of the
country different types of drugs are going to have varying
kinds of levels of abuse. What is popular on one coast may not
be as popular among the drug culture on the other coast, for
instance.
Mr. Cohen. Right. But marijuana is treated a little less
than crack and cocaine? Is that accurate?
Mr. Delonis. Yes.
Mr. Cohen. Okay. Do we want to go on? Okay.
A big problem in all inner cities----
Mr. Johnson. We will do a second round, and we will start
with you for the first 5 minutes.
Mr. Cohen. Thank you. Thank you, Mr. Chairman.
In a lot of inner cities--my city is no exception--gang
crime is extremely serious. And I believe there are some grants
that are offered by through the U.S. attorneys' offices for
anti-gang prosecutions.
Mr. Delonis, are you familiar with those?
Mr. Melson, I am sorry.
Mr. Melson. Yes. There are a number of grants that are
given to cities and local law enforcement as part of our anti-
gang strategy.
Mr. Cohen. How do you prioritize who gets the grants?
Mr. Melson. It depends on which grant you are talking
about. If you are looking at our Project Safe Neighborhood
grants, they are done on a--have been done--on a formula basis,
so that all districts will get some grant money to help them
with the anti-gang money.
There is the 10-city initiative in which extra resources
were put into 10 cities. Those decisions were based upon the
aggravated nature of their gang problems.
Mr. Cohen. Do you know if Memphis is one of those 10
cities?
Mr. Melson. If you give me a minute, I can look it up right
here.
Mr. Cohen. Sure. I mean, I would hope we wouldn't be, but
then I would hope we would be.
I presume what you are saying is, it is based on the level
of gang activities reported and gang crime, and it goes to
where it is needed.
Mr. Melson. Yes. In those 10, in those 10 cities. It may
take me a little bit longer to find it. I have it with me. But
if you want to ask another question, I can look for it while
you are doing that.
Okay. No, I have the list here. The 10 sites included Los
Angeles, Tampa, Florida, Cleveland, Ohio, Dallas-Fort Worth,
Milwaukee, eastern district of Pennsylvania, the 222 corridor,
Oklahoma City, Rochester, Indianapolis and Raleigh-Durham.
Mr. Cohen. How were they chosen? Because I would be--I do
not want to say that my city is deserved of top 10 recognition,
as we were in basketball for 39 minutes and 50-some seconds--
but I would have to think that we have got more of a gang
problem than Raleigh-Durham.
Mr. Melson. Well, I was not personally involved in that
selection. But I believe there were applications made by cities
who thought they should be included in the top 10. And they
were classified by the nature of the problem, the amount of
resources there, the types of crimes that were being committed,
the types of gangs that were there, whether they are
international, or so forth.
Mr. Cohen. This may have just worked out that way, but if
you look at what you read me, it is like a political decision.
You have got West Coast, L.A. You come around to Dallas in the
Southwest, you come up to Oklahoma. You hit Milwaukee in the
Midwest, come over to Cleveland. You come over to Rochester on
the East. You come down to Raleigh-Durham.
And what are the other cities?
Mr. Melson. We have eastern Pennsylvania.
Mr. Cohen. Right.
Mr. Melson. The corridor.
Mr. Cohen. So, Raleigh--I mean, Rochester--eastern
Pennsylvania. You get into the ACC there with Raleigh-Durham.
It is almost like a political thing to hit someplace around
everywhere on the map except the Pacific Northwest.
Mr. Melson. I have no information that anything political
whatsoever was used in the selection of these cities for that
money.
Mr. Cohen. Well, it sure looks like they were spread out,
and there was some purpose in spreading them out, so that a
little bit went here and a little bit went there. Because I
would have to think that you have got a bigger gang problem in
Memphis, in New York City, probably in Washington, D.C., and
some other cities.
Do you know where the biggest gang problems are, the
biggest number of gangs? I mean, Los Angeles has got a whole
bunch.
Mr. Melson. I am sure they do.
Mr. Cohen. And do you think New York might be right up
there with them? Chicago?
Mr. Melson. Yes.
Mr. Cohen. St. Louis, East St. Louis?
Mr. Melson. Right. And they may also have other resources
or other grants, which went to the same type of activity. So,
without looking at the entire picture and the entire
application, to look at other resources that are available that
the other cities that were chosen might not have, it is hard to
tell whether or not those cities were ignored or whether they
have resources to go after the gangs.
Mr. Cohen. I do not have any further questions, Mr.
Chairman. Thank you.
Mr. Johnson. Thank you, Mr. Cohen.
I have a couple.
As you are well aware, Mr. Melson, prosecuting public
corruption has been a high priority of the Justice Department.
Do you support the U.S. Attorney Tom O'Brien's decision in
March of 2008 to eliminate the public corruption and
environmental crimes section in the Los Angeles office?
Mr. Melson. He did not eliminate prosecutions or
investigation of those cases. He redistributed the individuals
from that unit to make other units--into other units, where
more people could prosecute those types of crimes.
For example, many of those individuals went into the major
fraud unit, major fraud and crimes unit, which, it is important
to note, has experience in all of those types of cases. So,
what this actually did is, it put more settings at the table,
as their spokesman noted, for purposes of prosecuting those
cases.
Mr. Johnson. So, I take it that you support that decision.
Mr. Melson. That was his decision to make, and the
discretion that he used to make his office more productive,
more responsive to the needs.
Mr. Johnson. And do you support it?
Mr. Melson. There have been no cases--yes, I support it,
because there have been no cases that have been affected by
that transition----
Mr. Johnson. What impact will that decision, you think,
have on the Los Angeles U.S. attorney's office to prosecute, or
to investigate and prosecute, public corruption cases?
Mr. Melson. It will do nothing but enhance it.
Mr. Johnson. All right.
I want to ask you some questions about Leslie Hagan. Are
you familiar with that case?
Mr. Melson. I have no personal knowledge of it. And I
understand the OIG and OPR have included that in their
investigation. So, it is difficult for me to talk about an
ongoing investigation at the department.
Mr. Johnson. Well, you are aware that she is a former
assistant U.S. attorney in the Western District of Michigan,
who was appointed as a detailee in October 2005, to be a
liaison between the department and the U.S. attorneys'
committee on Native American issues?
Mr. Melson. Yes. In fact, she still is an assistant U.S.
attorney. She never left that job. She was simply detailed to
the executive office.
Mr. Johnson. Now, in her final evaluation at EOUSA, dated
February 1, 2007, Ms. Hagan received the highest possible
performance rating. Despite receiving the outstanding ratings
on her job performance evaluation, she was removed from her
position amid rumors of her sexual orientation.
Is that your understanding of why she was removed?
Mr. Melson. I have no personal knowledge as to why she--and
she would not have been removed. Her detail would have been--
the detail was not extended. I do not believe that she was
removed.
Mr. Johnson. Do you know whether or not her sexual
orientation had anything to do with----
Mr. Melson. I do not know that, but I can guarantee you
that no decision regarding personnel in the Executive Office
for U.S. Attorneys will, under my watch, be based upon sexual
orientation.
Mr. Johnson. One month after Special Counsel Scott Bloch
took office in February of 2004, he ordered the removal from
the OSC Web site of all references to the agency's authority to
hear complaints by Federal employees who alleged discrimination
based on their sexual orientation.
Does the department--does your department agree with that
policy?
Mr. Melson. I don't think I can answer that, because I am
not familiar with the removal of that information from his Web
site.
Mr. Johnson. Well, do you think that it is only right that
Federal employees with complaints of alleged discrimination
based on sexual orientation should be heard by your agency? Is
that something that is appropriate?
Mr. Melson. Those are considerations and issues that EOUSA
certainly will evaluate. But whether or not the department
does, and whether or not it comes within the confines of the
EEO process, I do not know.
But all I can say is that there will not be any of that
under my watch at EOUSA.
Mr. Johnson. All right.
And now, also, court security legislation enacted last year
required your office to provide a report to Congress by early
April on the safety of assistant U.S. attorneys. To-date, your
office has not provided that report.
Can you tell us why? And can you also tell us when do you
expect to provide that report?
Mr. Melson. If it has not been, I apologize. It was my
understanding that we had provided that to you. But I will
check on that and get back to you. And if it has not, we will
get it to you.
Mr. Johnson. All right.
All right. At this point, my time has expired.
Mr. Cohen, I will defer to you for a third round of
questioning, 5 minutes.
Mr. Cohen. Thank you, Mr. Chairman.
I have always had a concern about prioritizing the funds of
the Justice Department, and in every way in prosecutions. And
we have had a drug war for many, many years. I have not seen
where we have made much success in the drug war. And I do not
know.
Mr. Delonis, are you an attorney?
Mr. Delonis. Yes.
Mr. Cohen. You are? Were you a prosecutor?
Mr. Delonis. I have been for 38----
Mr. Cohen. Okay.
Mr. Delonis [continuing]. Nearly 39 years.
Mr. Cohen. All right. I was not sure. I just was not here
for the introductions.
What should we be doing? And can we ever successfully
``win'' the drug war? Because I think it has been going on
maybe since Nixon's time, maybe before. Maybe it goes back to
Harry Anslinger, but at least since Nixon in 1970.
And from what I can tell, we are not winning. What can we
do to improve? Is it prioritizing? Is it more treatment? Is it
more border patrols, more prosecutors? What is the answer?
Mr. Delonis. I do not know that there is a simple answer.
It is a complex social problem that deals with prosecution on
one side, with demand on the other side, with dealing with
offenders who are caught and rehabilitation to the extent that
that may be possible, to dealing with it as a foreign relations
problem, too, because the source of a lot of the drugs is from
overseas.
It is one of those problems that has a myriad number of
aspects to it, that there is no simple solution. It is
something that has got to be addressed in a multi-agency,
multidisciplinary----
Mr. Cohen. I get where you are coming from, but I think you
know where I am coming from, and I think we both agree the same
thing. It is complex, but there is not enough out there. As
complex as you make it, as interdisciplinary as you make it, we
are not making a dent.
Mr. Delonis. Well, you can look at it two ways. You can say
we are not making a dent. And then you could say, if we had not
been doing what we are doing, where would we be today? How much
worse off would we be, had we not put the effort into it that
we have?
Mr. Cohen. Is it possible that the sentences were too
great, and the judicial--the sentencing system we have got,
where people have to serve a great percentage of their time,
and maybe the sentences are too long. If the sentence is--I
mean, putting somebody away for 15 years as distinguished from
7 years is still a deterrent, a major deterrent? They come out
after 7 years, maybe. And you can put a different round of
people.
You get up with the same number of people in jail. But if
you can put twice as many people in for 7 years, as the same--
half the number for 15 years, you might have a better chance at
kind of taking the people off the streets?
Mr. Delonis. I don't know that that is necessarily true. I
think those that get the longer sentences, by and large, are
deserving of those sentences. And----
Mr. Cohen. Ms. Williams, what do you think about that? Do
you think we could--you know, because you take somebody that
deserves it out of the system. Doesn't somebody else, just like
a shark's tooth, come up and take that person's place?
Ms. Williams. Unless you have arrested the head of the
beast, then yes, exactly. The people that we represent,
especially in Arizona, who tend to be what we call the mules--
either mechanized or walking, bringing the drugs across the
border--they do not have information.
They are not running the organization. They are poor people
who are doing this just to make money, and then you throw them
in jail for a mandatory minimum period of time. And there are
insufficient resources within now the Bureau of Prisons to go
ahead and help these people.
There is a statute that allows for shock treatment, which
is basically a boot camp for certain offenders. Bureau of
Prisons does not have the money to fund that anymore, and it
was a highly successful program.
Mr. Cohen. Would it be better to spend money on the--what
is the typical person that has got a great deal of crack or
marijuana, whatever? Is it a 10-, 15-year sentence? I guess it
depends on the different factors, I know.
Ms. Williams. Lots of different factors, depending on the
amount and depending on the person's criminal history. Many of
the people we see can qualify for safety valve, and that is to
get below the mandatory minimum if they qualify.
But sometimes, if you have somebody who just served 90 days
in jail for a misdemeanor, they are not going to qualify for
safety valve. And they may have the mandatory minimum amount of
crack or heroine, or whatever, and now they are stuck with 10
years, even though they are low person on the totem pole.
Mr. Cohen. Do you think that Congress should change the
sentencing laws to give judges more flexibility in how they use
our resources, our jail resources, and who they put away and
for how long?
Ms. Williams. Absolutely.
I think also it would be worthwhile to go ahead and provide
funding with probation and pretrial to start doing drug court.
It is a program that in the State systems has shown to be very
effective. And not many Federal courts have it, but it shows a
great deal of promise.
Mr. Cohen. Mr. Delonis or Mr. Melson, do you agree or
disagree that we should change our sentencing laws,
particularly in the area of either drug offenses, possession or
smaller drug cases, or drug cases, marijuana, to give the judge
more discretion and/or have drug courts?
Mr. Delonis. I think that we have seen with the latest
Supreme Court decision on the guidelines, that the judiciary
has stepped forward and given more discretion to the judges.
Now, what we do not want to do is go back to the unbridled
discretion of the old days, when you had wide disparities of
sentencing. When I am talking about the old days, I am talking
a quarter-century ago, where an offense of a certain kind in
one jurisdiction will draw a far more serious sentence from a
different judge in a different jurisdiction.
So, we need to have some fairness and uniformity, which the
guidelines give us. And I think we have gotten a----
Mr. Cohen. So, are you saying that the judicial changes,
the rulings from the courts, were appropriate?
Mr. Delonis. Well, first, the Supreme Court has given, now,
more discretion in the trial judges when it comes----
Mr. Cohen. So, before the Supreme Court acted, the law was
not a good law.
Mr. Delonis. Oh, I am not going to say whether it was good
or not. I am just saying----
Mr. Cohen. Well, it was improved upon. It is better. It is
like Tide, a new and improved law.
Mr. Delonis. Pardon me?
Mr. Cohen. It is a new and improved law now.
Mr. Delonis. Call it what you will. What we have we have
got to deal with. To me it looks like a better situation,
because the courts do now have a little more discretion than
they had before.
Mr. Cohen. Professor Turley, do you think we can make it
better?
Mr. Turley. Oh, I think we definitely can make it better. I
think that we have had great improvement as we have moved away
from the mandatory, rigid rules of the guidelines. And I think
we can improve it more by giving discretion.
You know, I testified a long time ago with a judge. And I
remember his statement always stuck with me.
He said, you know, I spend my--Federal judges in this
country are very accomplished people. And we spend our whole
lives going to good law schools, doing well, getting a job,
making partner, being successful. And then, when we have all
that experience, you make us Federal judges, and immediately
tell us, don't apply any of that in sentencing.
And I think he is very much correct in that. Most Federal
judges I have seen--and this has nothing to do with who
appointed them, conservative and liberal judges--tend to take
sentencing very seriously. And I think that you can give them
more discretion, and they do a very good job.
Mr. Cohen. And if I can have one.
Mr. Melson, how do you weigh in on this?
Mr. Melson. Well, I can tell you that when they had the
sentencing guidelines and minimum mandatory sentences, we were
seeing many more cases that we could go up the chain to the
head of the beast, because those sentences encourage defendants
to cooperate with us. And we were able to get cooperation out
of a tremendous number of people.
Now that the defendants can litigate their sentences with
the judge in a sentencing, and not be bound by the sentencing
guidelines, I think we are going to see fewer people
cooperating with us, making it harder for us to go up the chain
to those who really need to go away for a long, long, long
time.
Mr. Cohen. Mr. Turley, can you tell me why you smile?
Mr. Turley. Well, it is only because there is a difference
between a criminal defense attorney and a prosecutor that I am
sure Ms. Williams would agree on.
One of the reasons why sentencing was so neat under the
earlier system is, as a defense attorney you would plead your
person out, because there was not much room for you to do
anything else. And so, yes, it was great for prosecutors,
because you could hit some guy with multiple decades unless
they cooperated. And that is always good for producing
cooperation and pleas.
But it often produced great injustices. And I think we have
a better system by relying on our judges. And I think the
prosecutors have more than enough leverage to get cooperation.
Ms. Sanchez. [Presiding.] Professor Turley, if the
gentleman would yield.
Mr. Cohen. I yield to the----
Ms. Sanchez. It is interesting that you struck on something
that is very near and dear to my heart, which is justice,
because I do understand the need to try to get people to inform
on people higher up the chain.
But when you do not get people who are informing, and they
face a very draconian, mandatory minimum, where is the justice
and the sentence fitting the crime, which in many cases is very
basic, foot soldier, mule type work, not masterminds of vast
criminal networks?
And so, I think we also have to be mindful that guidelines
are great, but mandatory minimums do not always necessarily
mean that the ideal of justice is being served.
Mr. Turley. And Madam Chair, one of the things that I would
love to see this Committee look into is a very serious problem
involving the use of what are called snitches and cooperation
deals with prosecutors. As you alluded to, it is very, very
common now for prosecutors to tell first offenders, you know,
go and get me someone else. If you do not have information,
then bring some other guy in here, and I will deal with you.
And ``Frontline'' did a wonderful program on this about 10
years ago. There have been other studies. People have been
killed trying to do sting operations. There was a father once
who was injured once, because he was trying to do a sting to
get someone to produce a deal for his son.
And it had just gotten way out of control. And it would be
worthy of this Committee to look at it. It is very dangerous,
and it also shows how draconian these sentences are for first
offenders, that they would do anything they can to try to find
someone that they can snitch on.
Ms. Sanchez. Thank you. The time of the gentleman has
expired.
I am going to recognize myself for 5 minutes for questions,
and this will be the last set of questions. So, I appreciate
everybody's patience in staying here during the votes, et
cetera.
Mr. Melson, according to the department's Web site, one of
EOUSA's major functions is to evaluate the performance of the
offices of the United States attorneys, making appropriate
reports and taking corrective action when necessary.
During the U.S. attorney firings controversy, we learned
that Kyle Sampson, the now-resigned chief of staff to the
attorney general, maintained and revised various lists of U.S.
attorneys to be fired or retained. He received input from
various sources, including several White House officials.
In the wake of the controversy, have evaluations of the
U.S. attorneys changed? Has a process for evaluating them
changed?
Mr. Melson. The process for evaluating the U.S. attorneys'
offices, which we think is a very valuable and significant
process, has remained the same. It was not defective or broken
during the time of the U.S. attorneys' firings.
I do not know how the reports were used, but the evaluation
process had integrity then. It maintains integrity now.
In fact, I participate----
Ms. Sanchez. With all due respect, in our investigation
into the U.S. attorneys' firings, there have been a number of
pieces of evidence, which lead us to suspect that many of those
firings were done for purely political reasons, not having to
do with the qualifications or the ability of these U.S.
attorneys.
In fact, some of them received outstanding and rave
reviews, and yet their names appeared on the list, because they
had displeased somebody with their failure to pursue certain
cases that were being thrust upon them, where they saw no
evidence, or because--and other political considerations, as
well.
So, I don't know that I agree 100 percent with your
assessment that the process of evaluating them has integrity.
Mr. Melson. Well, may I respond to that?
Ms. Sanchez. Absolutely.
Mr. Melson. Those conclusions that you found in your
investigations would not have been drawn from the EARS
evaluation. The EARS evaluators are 100 percent career
prosecutors and support staff who go into these offices. They
look at the programs. They evaluate how the programs are
running. They do not make judgment calls. They do not make
political calls in there.
So, I do not think you will find in any of the EARS
evaluations, the evaluations from our staff, that have anything
that will support your allegations or suppositions with respect
to the political firings.
And I am not saying they were or they were not. All I am
saying is----
Ms. Sanchez. I understand. Let me rephrase the question.
The reports that are prepared as to a U.S. attorney's
qualifications and their work product, do you think that those
should be disregarded when it comes to hiring and firing U.S.
attorneys? If their performances are outstanding, and these are
U.S. attorneys that are teaching seminars to other U.S.
attorneys on how to prosecute certain cases, I mean, do you
feel that it is, you know, that those reports can be
disregarded or completely ignored?
Mr. Melson. No, and they have not been disregarded when
there is a basis in the evaluations for a removal for cause.
And there have been some U.S. attorneys over the history, as I
think one of the other Congress members pointed out, U.S.
attorneys that have been removed for cause.
And our reports, when they raise serious allegations of
performance with respect to a U.S. attorney, those may be acted
upon by the deputy attorney general. Our reports merely reflect
their performance in the office as the head prosecutor for that
district.
Ms. Sanchez. Okay. Assuming that the reports are very
favorable, and there is not a desire to remove somebody for
cause, but simply at the whim--and somebody is performing in an
outstanding capacity and desires to stay on in the U.S.
attorney's office--doesn't it really render the evaluation
useless, if these people can just summarily be dismissed for
reasons other than cause?
Mr. Melson. That consequence certainly is not one of the
purposes of the evaluation and review staff and the reports
that we do.
Ms. Sanchez. I have a couple of lines of questioning. Just
out of curiosity, and one of the issues that I mentioned in my
opening statement was the dissolution of the public corruption
section in the Los Angeles U.S. attorney's office.
In justifying the dissolution of that section, a spokesman
said that he was not aware of any other U.S. attorney's office
in the country that had an entire section of lawyers
specializing in public corruption cases. Is that a correct
statement?
Mr. Melson. I have not looked at all the U.S. attorneys'
offices. There very well could be large districts--maybe one of
the New York districts or Chicago's--that have a public
corruption unit. But that is really beside the point.
Mr. O'Brien merely reorganized his office to become more
efficient and to produce better results.
The name of a unit that a particular prosecutor is in is of
little consequence. None of the cases that were pending at the
time that he made the reorganization have been or are being
affected by the reorganization.
In fact, the public corruption cases are now being pursued
by a much larger group of very experienced career prosecutors,
who hopefully will be able to actually pay more time and
attention to those very serious and significant cases.
Ms. Sanchez. Statistically speaking, have the same number
of cases been brought, now that that unit has been disbanded
and farmed out among different other units?
Mr. Melson. It is a little bit too early to say that,
because these cases take a long time. But since the
reorganization, several long-term, pending cases have popped
out of the grand jury, have been indicted. So, to that extent,
we have a preliminary indication that his reorganization was a
dramatic success.
Ms. Sanchez. If over time, statistically speaking, the
opposite comes to pass, in that the number of cases of public
corruption actually drop significantly, would they consider
reinstituting the special unit?
Mr. Melson. I think Mr. O'Brien is dedicated 100 percent to
public corruption cases. And if it looks like it is necessary
to reorganize the office to maintain the aggressive prosecution
of public corruption cases, he will do that.
Ms. Sanchez. Thank you. A last question for Mr. Delonis.
Anecdotal accounts from U.S. attorneys' offices along the
southwest border indicate that these offices are having a
difficult time recruiting and retaining qualified assistant
U.S. attorneys, because they are primarily working on
misdemeanor border crossing prosecutions.
To your knowledge, are those accounts correct?
Mr. Delonis. I do not have any personal knowledge with
respect to retention and recruiting in those particular
jurisdictions. I would guess the natural inclination of an
applicant would be that, on joining a U.S. attorney's office,
that they would aspire to prosecute large, significant felony
cases.
But that is generally something you work your way up to.
You do not start at that level.
Ms. Sanchez. I understand. But if an emphasis is being
placed on less significant cases that are being used to drive
up statistics in a particular area, and people are--they are
having a hard time recruiting or retaining people, because they
are not doing work that they aspire to do, or that is
meaningful for them, would that be a problem?
Mr. Delonis. Like I said, I don't really know, because
nobody has discussed with me that it is a problem in their
particular office.
I would just say that, from experience, you start with--it
was a long time ago when I started--but my first assignments
included prosecuting moonshine cases and stolen cars. And that
is how I started my career, and I worked my way up to things
that were much more complicated.
Now----
Ms. Sanchez. Ms. Williams, can I ask the same question of
you?
Ms. Williams. I know that in the Tucson office last
September, there were five assistant U.S. attorneys who
resigned or were reassigned to different offices. One became an
immigration judge. And that part of the reason for that was the
frustration of the high caseloads and the morale within the
office, because of the high caseloads.
When I started with the public defender's office 14 years
ago, I knew that the Tucson U.S. attorney's office was a
popular spot for assistants to transfer maybe for a short time,
2 years, to go ahead and prosecute cases, especially if the
prosecutors were from colder places. Now, they are not getting
the people volunteering to do that anymore, because of the high
caseloads.
Ms. Sanchez. Right. I appreciate your answer.
My time has expired, so I would like to thank all the
witnesses for their testimony today.
Without objection, Members will have 5 legislative days to
submit any additional written questions, which we will forward
to the witnesses and ask that you answer as promptly as you
can, so that those can also--those answers should also be made
a part of the record.
And without objection, the record will remain open for 5
legislative days for the submission of any additional
materials.
Again, I want to thank all of the panelists for their
testimony and for your patience, especially in the face of
votes across the street.
And with that, this hearing of the Subcommittee on
Commercial and Administrative Law is adjourned.
[Whereupon, at 5:11 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Response to Post-Hearing Questions from Kenneth E. Melson, Esq.,
Director, Executive Office for United States Attorneys, U.S. Department
of Justice, Washington, DC
Response to Post-Hearing Questions from Heather E. Williams, Esq.,
First Assistant, Federal Public Defender, District of Arizona, Tucson,
AZ
Post-Hearing Questions submitted to Richard L. Delonis, Esq.,
President, National Association of Assistant United States Attorneys,
Lake Ridge, VA
--------
*Note: The Subcommittee on Commercial and Administrative Law did not
receive a response to these questions from the witness prior to the
printing of this hearing.
Response to Post-Hearing Questions from Jonathan Turley, Esq.,
The George Washington Law School, Washington, DC