Friday, March 20, 2009

Wecht Argues Against A New Trial

Former Coroner Dr. Cyril Wecht spent his 78th birthday in court today, watching his defense team fight to keep prosecutors from putting him on trial again.

Wecht's first trial on public corruption and fraud charges ended in a hung jury. The defense is asking the new judge to toss out key evidence, an action that could gut the prosecution's case. Wecht's lawyers argue that the search warrants used to seize records from wecht's private business were invalid.

"In our view, if those search warrants are quashed, there is no case. Those started the whole investigation. they were the fuel of all of this", Defense Attorney Jerry McDevitt said after the hearing.

This was the second birthday Wecht has spent in court, fighting the charges against him.

"Can you imagine younger I would look, if that had not been the case, right?" Wecht joked with reporters afterward.

The government alleges Wecht used resources of his former public office to profit his private consulting business and that fraudulently billed his clients. Judge Sean McClaughlin ordered today's additional arguments from both sides.

If you're reading this on the blog's home page, you can click on the "Read More" link at the end of this post to see my notes on what happened in the courtroom today.

Wecht Case Hearing, Pittsburgh Federal Court

March 20, 2009

What you read below are my raw notes -- not a verbatim transcript. Fragments may contain direct quotes or keywords, but this does not include every aspect of every argument made or every question asked.

1:59 PM This hearing is being held via videoconference. Judge Sean McLaughlin is in his courtroom in Erie. The prosecution and defense are in a courtroom on the third floor of federal court here in Pittsburgh.

Dr. Cyril Wecht has just arrived, joining his defense attorneys Jerry McDevitt and Mark Rush at a table to the right of the courtroom. Prosecutors James Wilson and Leo Dillon are at a table to the left of the courtroom.

Judge: I would like to begin with the discussion of various suppression issues this afternoon.... with an examination of the boxes warrant. The warrant indicates boxes --approximately 20 -- containing private autopsy files.

Judge: Isn't the face of the warrant arguably problematic, In that at a private office there would be numerous files not related to the case? ...How was it meaningfully circumscribed?

Wilson: The number and the description. This warrant -- while arguably over-broad -- does not permit unfettered rummaging.


Judge: Doesn't that warrant on its face authorize the seizing of boxes for which there was no probable cause?

Wilson: It's problematic.


Judge: Do you agree to me that a general warrant cannot be saved by the good faith of officers at the scene?

Wilson: Agrees ... but says this is a case of the exception swallowing the rule whole.


Judge: Let's talk about the prism through which I should view this warrant. Through the eyes of the issuing magistrate judge, without reference to what the agents actually saw, once they got on the scene...?

Wilson: Are you asking me "does the 'four corners doctrine" apply'? ...Yes.

Judge: The numerical limitation is 20 boxes, the subject matter limitation is private autopsy files?

Wilson: Yes.

Judge: The problem with an over-broad warrant is that there is probable cause for only some of the items?

....Wilson discusses that what they were looking for was records of private work done by county employees on taxpayer time. He says the records in question were allegedly originally kept at the Allegheny County Coroner's Office and moved to Wecht's private office while the investigation was under way.

Judge: Didn't the face of the warrant permit the agents to rummage through the defendant's papers...?

Wilson: As it related to private autopsy files? Yes.


Wilson: ... Is this a general warrant simply because it suffers from an inability to be redacted? My answer would be no.

Judge: Let's talk about the limiting criteria in the affidavit of probable cause.


Judge: Is it accurate to say there was something in the vicinity of 60 to 70 boxes on the premises?

Wilson: Correct.

Judge: Any indication how many were searched?

Wilson: No numerical indication.... but 60 to 70 is the number they've been working with.

Judge: It's of at least passing interest that there were many, many more boxes there than approximately 20?

Wilson: Correct, your honor. The authorization was only for 20.

Judge: Should it give anyone pause that 29 boxes were seized?

Wilson: Absolutely not. There's nothing in the affidavit that says 20 and only 20. Wilson says there was always an attempt to narrow them to those recently removed from the coroner's office.

Judge: Is there, in your view, any material issue of fact on the record that is in dispute?

Wilson: I have yet to hear from the defendant of a single box-- that single box that has been taken in violation of the criteria. In every instance in which there was a discussion of the criteria for whether a box should be taken, it was to narrow the number.

Judge: Judge Schwab (the judge from the first trial) ruled that the warrant may have been over-broad, but it was solved by the way it was executed?

Wilson: Agrees.

Judge: Says he now wants to the discuss "the laptop warrants", which sought all data contained therein. You maintain that's not a general warrant. Why isn't this equivalent of issuing a warrant for a home and all its contents or a business and all of its files?

Wilson: Answers that some warrants of those sorts for homes or businesses may be perfectly sound. Gives an example of someone suspected of being part of an espionage ring and arms dealing. Says you could search that person's home with a warrant for computer data or microfiche... tearing the place apart, looking for the evidence.

Judge: Raises question of whether there could be data on the computer of an entirely personal nature. Wouldn't it have been possible to give the warrant a more specific particularization? Gives example of the type of data or a date range. Suggests they wouldn't be having this discussion if the affidavit had been attached to the warrant.

Wilson: Says the warrant is very specific. Says the affidavit is silent on any other use than work for Wecht Pathology.

Judge: Is the government's position is that there's something unique about a computer, as opposed to a house or a business, when it comes to a general warrant.

Wilson: The government needs to look for everything here. Look at cases involving computers, across the board. Once you can get into the computer, you can look at everything. Also says if it can show Eileen Young did little or no county government work on the computer, that (also) goes a long way towards making the prosecution's case. ...Says Young identified thousands of computer files involving private work on the laptop.

Wilson: This warrant is precisely specific; it says exactly what we want to seize.

2:54 Defense Attorney Jerry McDevitt's turn to answer the judge's questions.

McDevitt: Looking at the warrant itself ... If you were at home tonight and a federal agent showed up at your doorstep with a warrant for your computer... this says there would be no limitation to identifying any crime at all. These warrants were an authorization to look at everything on a computer, whether it was related to a crime or not.

McDevitt: They now concede you can't redact these warrants. If it's a facially defective warrant that lacks particularity, it cannot be saved.

Judge: I'm looking at United States vs. Rovitto (sp?)...2008. The circuit said that a warrant that is over-broad can be cured by an affidavit, even if it's not incorporated in the warrant.

McDevitt: Says Supreme Court precedence decided this. Says when you're looking at a facially defective warrant, you don't save that with good faith.

3:08 Judge says he's going to give the court reporter a break, then come back and they'll talk about mail and wire fraud.

3:20 Back in session.

McDevitt: (Back for now to a discussion of the boxes.) Says boxes had lids on them, and that an agent on the scene during the search was instructed by phone to open every box and take everything that had contents with Eileen Young's name on them. McDevitt recalls an agent testifying there numerous boxes containing private autopsy files. That agent called FBI Agent Orsini, who McDevitt says gave those directions by phone. It couldn't be clearer what they did: they opened every box, the rummaged through, and took every box that had something inside with Eileen Young's name on it.

Judge: You're saying the executed it as though it were a general warrant.

McDevitt: Yes. (McDevitt goes on to read at length from a transcript of statments by FBI Agent Welsh.)

Judge: On the subject of the computer warrant and its alleged generality: how could that have been solved, if it was flawed as you contend?

McDevitt: Specifying they were looking for evidence of doing private work on county time. It's a unlimited search, unrestrained by criminal law.
No warrant without specifications is a valid warrant.

3:35 PM. Judge calls on Mr. Dillon.

Judge: I'd like to spend a few minutes to discuss the counts of mail and wire fraud here. The government posited that payments were made only because of the fraud. My initial question to you is this. Isn't that the wrong approach here? Isn't the proper inquiry whether an objectively reasonable informed victim would have found it (important) to the decision making process. ...The mere fact of payment was made cannot address the materiality of the falsehood?

Dillon: Argues that the victims would not have paid the alleged overcharges if they knew about them.

Judge: Can you tell me the nature of the evidence that the nature of the overcharges were material?

Dillon: The falsity of the bills is in the nature and totality of the expense. They're false in their essence. In regard to the mileage charged to other counties, there was no mileage.

Judge: Asks questions about any amount so de minimis as to not be material. Calls McDevitt back to answer questions.

Judge: In a nutshell, what was it in your view about these two sets of charges --mail fraud and wire fraud -- that was missing?

McDevitt: Quotes a case in which a court ruled on the actual testimony of the people making the decisions. He says in this case they failed to give the jury adequate information to determine whether the actual person would find it (de minimis). It's just a morality play, that's all it is. They didn't prove that element of the crime.

Judge: Let's move on... I understand your position that aggregation should not be permitted. ...Doesn't it put out of the reach of prosecution a perpetual embezzler who is smart enough to avoid embezzling more than $4,999 a year?

McDevitt: Says Congress drew the line at $5,000. State law is there to deal with other other figures.

Judge: What in your view does the record show as to whether Dr. Wecht's employees did or did not complete their required county work over the course of the work day?

McDevitt: Says asked at trial: "Cut to the chase, did they get their county work done?" The answer was that they did.

McDevitt: If you believe Dr. Wecht did everything they accused him of, it's not as though there's not state laws to deal with it. They could have filed a state ethics complaint, a prosecution under the state ethics act. None of that ever happened.

3:59 PM

Dillon: There are separate bills for 30, $40 each, and none of the expenses were incurred. They were all part of the whole scheme to defraud.

Judge: The jury was only presented with discrete instances of fraudulent conduct. Is it your position they should have been able see it as part of a scheme?

Dillon: Says there was testimony of this taking place over a number of years.

Judge: What, if anything, does the record in this case show about whether the the employees were able to complete their county work on county time.

Dillon: Says they had little or no county work to do. Says in the case of the administrative assistants, they spent virtually all their time doing private work.

Judge: You are suggesting they were essentially sham employees of the county?

Dillon agrees.

Judge: Asks whether the annual pay of the administrative assistants meets the standard to trigger the federal law: a figure in excess of $5,000 in a year?

Dillon details information to support that position.

Judge: Asks about the "Wecht details" -- private, personal errands done by coroner deputies for Whect on county time.

4:11 Judge says he wants to check his notes. He'll be back in a bit and he says they may wrap up soon.

4:17 Judge McLauglin reappeared on the videoconference screen briefly to thank the attorneys and conclude the hearing. There's no indication of when he will issue a ruling.



Bram Reichbaum said...

"Former Coroner Dr. Cyril Wecht spent his 78th birthday in court today..."

"This was the second birthday Wecht has spent in court, fighting the charges against him."

And? Come another three and a half months, the government will also have celebrated two birthdays during these proceedings. Will that also be part of the lede?

This is a good illustration as to why the prosecution is trying to move the trial a hundred miles north.

Bob Mayo said...


If the government were to hold court on a federal holiday, it most likely would be mentioned in the lead sentence, yes. Don't you think?

Bram Reichbaum said...