Extra! Extra! Some Guy Gets a 5K1!

From today’s Houston Chronicle—the front page:

U.S. agents are armed with the secrets of a convicted Houston gunrunner, information that could lead them to top Mexican drug-cartel bosses and the Texas firearms dealers suppling high-powered weapons.

[Defendant] was sentenced to three years in federal prison as a result of a plea agreement that offered leniency in exchange for telling U.S. officials about his criminal contacts, according to court papers.

“[Defendant] has also provided assistance and information related to the sale of the firearms in question to highly sought fugitives who are believed to lead one of the most violent Mexican drug cartels, the Zetas,” states a paper submitted to a federal judge by his lawyer …

So a defendant in federal court got his sentence reduced (from a 24/II 57-to-71-month sentence) by cooperating with the government. To the federal criminal-defense lawyer, this is not news. The same thing happens every day, and is not generally worthy of mention. There is nothing in the facts of this story that makes it worthy of mention—we’re not talking about Osiel Cardenas Guillen here, but rather a schnook who was buying guns in the U.S. to be shipped overseas.

It is, however, metanews: the most interesting part of this story, to the lawyer practicing in federal court, is that the story got written at all.

I don’t know how to describe the jeopardy this defendant is in without sounding cavalier: He’s a dead man. If the Zetas don’t get him in prison, they will when he gets out. His family is probably in terrible danger as well.

People facing federal prison time often cooperate with the Government. Other people involved in criminal activity know this. People cooperating with the Government try to conceal their cooperation, and the Government tries to help them do so. The Government won’t reveal the identities of its cooperators until it is forced to; other than helping to keep the cooperators alive, it usually makes strategic sense.

The leaders of the Zetas, knowing that this defendant is willing to cooperate against them, will be highly motivated to remove him from the picture. This would be true if only they know that a person is cooperating; since the cooperation is very public, so that anyone who has ever dealt with the Zetas can know about it, they have to eliminate him, and probably his family as well: if they don’t, others will feel able to betray them (as they see it) with impunity.

Here’s the lawyer’s description of his client:

[Defendant’s] history and characteristics are those of a hardworking young man who in times of economic pressure, and in an effort to safeguard his family’s life, willingly participated in a large scale firearms trafficking conspiracy.

So much for that.

So how and why did the story of this defendant’s cooperation become front-page news in the Houston Chronicle?


How: The source of the quotes in the article is obviously a sentencing memorandum by the defendant’s lawyer. Such memoranda are always filed under seal (a trivial matter under the Electronic Court Filing system); this memorandum could have been leaked to the press by a) the Government; b) the court; or c) the defense. None of them have any apparent motive. The Government risks losing its witness (and discouraging future cooperators—in hindsight, I’ll bet ); the federal courts are pretty good at keeping secrets; and the defendant has more to lose here than anyone.

A quick check of PACER, however, shows that the sentencing memorandum and an earlier response to the Presentence Investigation Report were filed by the defense in the open—that is, not under seal. They are there for download right now. Maybe there’s some opaque reason for the defense lawyer to want the fact of his client’s cooperation to be publicly known, but any good reason escapes me. Somebody on the defendant’s team screwed up, putting the defendant’s life and his family’s lives in jeopardy.


So that’s how it happened. No great conspiracy, no grand-jury leaks. Just someone clicking the wrong link in ECF when electronically filing a couple of documents. Sure, the Chronicle compounded the danger by naming the defendant on the front page, but it’s not the Chronicle’s duty to keep the Government’s informants alive.

Why did it happen? Because, as much as it isn’t news to the federal criminal-defense lawyers, the story of a defendant’s 5K1 provides a little window into the working of the federal criminal-justice system for people who aren’t in the business. Sure, it’s puffed out of proportion in the Chronicle’s light-yellow way; the story would be more accurate if it showed the mundanity of the defendant’s action, but that would defeat the purpose of putting it on the front page: “Hot on the cartel trail.”

Though I doubt that the Chronicle writer, who has written a string of articles about the drug cartels and federal drug prosecutions, is as clueless as he seems about the import of a podunk defendant’s podunk cooperation, he does have plausible deniability: he’s just reporting what the defendant’s lawyer said in court documents. And he knows to seize the moment, because if criminal-defense lawyers take due care of their clients’ business, he’ll never again get a chance to publish a lawyer’s memo hyping his client’s cooperation.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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12 Responses to Extra! Extra! Some Guy Gets a 5K1!

  1. shg says:

    Absolutely mind-boggling. Since I wouldn’t have a clue who the players are in any event, what are the chances that defense counsel lacked federal experience and didn’t realize that filing his paper in the open would be a death warrant for his client? Even the sort of lawyers whose practice involves a race to the US Attorneys office knows better than to make a mistake like this. It just doesn’t happen, as everyone knows the signfiicant of disclosing the name of the rat.

    Unless, of course, the lawyers received a generous third party fee to represent the cooperator. Nah, that couldn’t happen.

    • Mark Bennett says:

      Nope. Lots of federal experience. My best guess is that someone forgot how to file a sentencing memo under seal.

      • shg says:

        Are you thinking kid lawyer, clerk, secretary, that sort of thing? It strikes me as impossible to believe that a layer experienced in federal defense would make such a deadly mistake.

      • Mark Bennett says:

        Yes. That’s my guess.

      • shg says:

        If so, it’s another thing to add to the list of obvious but critical responsibilities of criminal defense lawyers, to make certain that no one on their staff makes a silly little mistake (oops, sorry) that just happens to lead to the client’s death.

  2. I should not have read this right after extricating myself from the place I went to write my own article a moment ago. This is just too painful to consider.

    More than once I’ve quoted Vincent Hallinan (1896-1992), who said, “Lawyers make a good living off the misery of others….”

    We must be ever vigilant that we do not increase that misery.

  3. Anna Durbin says:

    Ugh and a half! I don’t know what your disciplinary rules are in Texas, but if it happened in PA, I would be looking at my rules to see if this is something I would have to report to the Bar Disciplinary Committee or the District Court Disciplinary Committee. I do not like jumping on other lawyers, but when a client’s life is at stake? That lawyer should be asking US Attorney to ask BOP to put client and fam in WITSEC in prison and out.

    • Mark Bennett says:

      Suppose—hypothetically—that the lawyer was puffing the client’s cooperation, and that in fact the client had been unwilling to provide any useful information against the Zetas.

      The client would not be eligible for WITSEC, but he and his family would still be eligible for greenlighting.

  4. Mike Trent says:

    Mark, I’m glad you chose to write on this. I have not done any federal work yet, but I had to cringe when I read the article. And, while the ultimate blame lies with the lawyer, I don’t let the Chronicle off as easily. How can anyone with a lick of common sense not realize the danger such publicity creates for this poor man and his family? Seriously! There is such a thing as responsible journalism. Can anyone truly be that stupid? –Guess that’s a dumb question. OF COURSE THEY CAN!!!

    • shg says:

      Aside from the fact that his lawyer blew it and the Chron printed it, where did you get the impression that th defendant/rat is properly described as “this poor man?” He doesn’t deserve to die for what he did, but he’s not exactly sympathetic otherwise.

  5. lewis kennedy says:

    This type of documentation should never be filed electronically (or have to be) – there’s simply too much scope for mishap.

    What’s wrong with the old-school approach – a hard copy of the letter from the cop confirming your client’s credentials – in a sealed brown envelope – hand-delivered by the lawyer to the sentencing judge’s clerk – and for the judge’s eyes only?

    There shouldn’t even be any electronic record retained in the lawyer’s own office – or mention on file. Nor should these matters be delegated. A ‘need to know’ basis only.

  6. Max Kennerly says:

    An appalling mistake, though I partly blame ECF. I have zero experience filing criminal matters, but on the civil side I’m routinely required by ECF to mislabel documents or to violate particular judges’ policies.

    I don’t see why ECF can’t annoy people with something like “Does this document indicate cooperation with the government?” etc., etc. Some of our civil prompts stop you and make you check a box for “Have you redacted?”

    Why not add: “Might this filing get your client killed?”

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