Podcast - Jurisdiction Is in the Eye of the Beholder
In this episode of "The Trial Lawyer's Handbook," litigation attorney Dan Small recounts attempting to prosecute a New England mob boss and the challenge of filing a complex case before the statute of limitations expired. Mr. Small explains how the case moved between Miami and Providence, how venue and timing decisions shaped strategy and why the trial judge ultimately dismissed the case despite a grand jury indictment. He highlights lessons on venue, audience and the importance of aligning the forum with the story you need to tell.
Listen to more episodes of The Trial Lawyer's Handbook here.
Mr. Small is also the author of the American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Daniel Small: My assignment in the case of New England mob boss Raymond Patriarca that we've discussed in prior episodes was more complicated than the usual "go see what's happening." The chief of the Department of Justice's Organized Crime and Racketeering Strike Force told me that the underlying actions had taken place in Rhode Island and Florida. But for whatever reason, the case had bounced back and forth between Providence and Miami, until someone realized that all that bouncing around had brought it perilously close to the five-year statute of limitations. It's one thing to decide based on the merits not to bring a case. But imagine how embarrassing it would be if a potentially high-profile case was bounced, bungled and delayed out of existence.
So my assignment from the chief was more pointed than usual. Basically, it was:
- Find out where the files are currently.
- Go there and assemble the team.
- Decide if there is a case.
- Get it before a grand jury and indict it fast before it disappears on the statute of limitations.
In other words, get on a plane and make it happen. So I did.
For reasons I never quite figured out, the files were in Miami, and some of the initial legwork had been completed there. I thought about boxing everything up and moving it back up to Providence, Rhode Island, where the case probably belonged and most of the action happened, but time was short, and it was quicker to get the FBI team on a plane from Providence to Miami. Once assembled, we very quickly reviewed the case, decided that it had merit, drafted an indictment and a memo to go up the line recommending prosecution, got it approved in Washington, brought it before a grand jury in Miami and got the indictment. But that's when it got a little more complicated.
Federal judges are busy people, and over time they learn to be very protective of their docket. The judge to whom this case was assigned had been on the bench for some time and had become notoriously protective of his docket. He looked at our indictment and quickly decided that even if we had enough of a link to Miami legally or even factually, it really should have been brought in Rhode Island. It was a Rhode Island case. Why was it clogging up his busy docket in Miami? From the beginning, that was his view of the case: It was just not his problem.
Grand jury indictments are typically given great deference by the courts. A panel of citizens has assembled, heard evidence and voted to return an indictment. Motions to dismiss an indictment are rarely brought and very rarely successful. Yet here, we knew that the judge didn't want this case in front of him, so we felt concerned. Sure enough, the defense filed a motion to dismiss, primarily on statute of limitations grounds. We knew that we were close, but we believed we were on solid ground. However, the judge found a way to get the case out of his courtroom, ruling that under the Racketeer Influenced and Corrupt Organizations Act, also known as RICO, the conspiracy statute required overt acts, and the one overt act we had alleged in the indictment within the statute of limitation wasn't good enough. Case dismissed.
We appealed to the Eleventh Circuit. In my argument to the Court of Appeals, I emphasized the importance of the case, and whether or not Miami was the best venue, it was legally sufficient and we were within the statute of limitations. The Court of Appeals agreed, finding that overt acts didn't need to be specifically alleged in a RICO conspiracy indictment, and that the indictment clearly alleged a crime within the statute, and reversed the district court's dismissal.
In many federal jurisdictions, if a case goes up on appeal from the district court and gets reversed, it then comes back and it goes through a different judge than the judge that was originally drawn to the case, so there can be no allegation of bias or retribution. Sadly, there was no such rule in the Southern District of Florida at the time. So the case went back to the same judge, who had wanted it gone in the first place.
Meanwhile, more than two years had passed between the indictment and the Court of Appeals decision. I had moved on to a new job with the Public Corruption Unit in the U.S. Attorney's Office up in Boston, and I was too caught up in other matters up there to leave for the time it would take to prepare and try the case in Miami. Another team was assigned to the case from the Department of Justice in Washington, D.C.
I felt bad for them. They were walking into a problem that was not of their making, trying a case in front of a judge who believed it should not be there. No judge likes their decisions to be reversed, so now it was a double whammy. He was exerting control over his docket – his turf – which is not unreasonable, and we had challenged him and won. Sure enough, when the case went to trial, the judge waited impatiently through the government's arguments and then dismissed the case again, this time in a way that made it virtually impossible to appeal. It was over.
Raymond Patriarca, the powerful and ruthless head of the mob in New England, had avoided trial based on his health claims, and the labor union officials who conspired with him, we believed, had the charges against them dismissed. The government has lost all around.
In hindsight, maybe we were too focused on the legalities and the logistics, not on the people and the places. We believed that we had enough legal and factual basis to bring the case in Miami, and it was not worth a mad dash up to Rhode Island. But in every case, you're telling a story. You want to do everything you can to make sure that your audience wants to hear it. Of course, we didn't know which judge would draw the case in the random draw before we brought the indictment in Miami. And certainly there were other judges who would not have been as upset about the location issue. But who knows? The point stands. Do everything you can to find the right audience for your story. In retrospect, I probably should have thrown everything in boxes, raced to the airport and brought the darn case in Rhode Island. Lessons learned.