Federal prosecutors had no right to secretly record conversations between Baltimore lawyer Joshua Treem and a witness in his defense of lawyer Kenneth Ravenell, the men alleged in a motion this week, saying the act was so “egregious” that the criminal case against them should be tossed out.
Attorneys for Treem, Ravenell and private investigator Sean Gordon argue that the government is portraying a vigorous criminal defense by an experienced lawyer as something criminal. Their motion calls the obstruction of justice charges against the men a “direct assault” on protections afforded attorneys working to defend clients that “shocks the conscience.”
“In this virtually unprecedented case, the government used a secret and illegitimate recording of the defense’s privileged interview of [a witness] to obtain privileged opinion work product and defense strategy, obtain search warrants for attorney legal files, and publicly charge two extremely experienced and well-known attorneys as well as an experienced criminal defense investigator with felony obstruction of justice charges,” defense attorneys wrote in the motion over 2017 recordings made in an Arizona jail.
Ravenell, himself a high-profile defense attorney, was charged with racketeering in 2019 by federal prosecutors for allegedly aiding the drug trafficking enterprise of client Richard Byrd, a nightclub impresario and marijuana boss. The accusations include helping launder money and running interference on investigations.
Those charges have been pending, but the U.S. Attorney’s Office added new charges in December 2020 against Treem and Gordon, the private investigator, related to two meetings they had in 2017 with Byrd as part of their representation of Ravenell. The Drug Enforcement Agency and the Internal Revenue Service were also part of the investigation, records show.
Prosecutors have charged that the recording shows that Treem committed obstruction of justice by knowingly having Byrd sign off on false statements.
Defense attorneys for Ravenell, Treem and Gordon responded for the first time in detail with a slew of filings Tuesday, asking that the charges be dismissed. Alternatively, they ask that the video be stricken as evidence and that prosecutors who have seen the video be thrown off the case.
The U.S. Attorney’s Office did not respond to a request for a comment.
David Jaros, a law professor at the University of Baltimore, said the case raises valid concerns about the government chilling the work of defense attorneys, even if the defense isn’t ultimately successful at getting the case thrown out.
“There is a real danger and chilling effect if attorneys can’t go out and vigorously investigate their case without fear that the prosecution or the police are listening in,” Jaros said. “On the other side, there may be an attorney who is involved in criminal activity or crosses ethical boundaries in trying to protect their client. There’s a real tension in this case.”
The case is one of two criminal prosecutions that the Maryland U.S. Attorney’s Office is known to be pursuing against high-profile attorneys over actions connected to their work. The other is against malpractice attorney Stephen Snyder, for allegedly extorting the University of Maryland Medical System over organ transplant problems.
In the Ravenell case, attorneys say Byrd reached out to Treem, telling him that Ravenell had not done anything wrong, and Treem had a duty to obtain such exculpatory statements from him. Treem and Gordon travelled from Baltimore to Arizona in September 2017 to meet with Byrd after obtaining permission from his new lawyer, they say. Byrd is serving 26 years in prison after pleading guilty to drug charges in February 2017.
Something occurred one month before the meeting that was unbeknownst to Treem and Gordon, but it is redacted from the filing. There are many additional redacted passages throughout Tuesday’s motions.
Arizona is a one-party consent state with regard to recordings of conversations, and the conversations took place in a detention facility. Treem was also not representing Byrd, so their conversations would not be protected by attorney-client privilege.
During their first, three-hour meeting, Byrd said that Ravenell hadn’t done anything wrong, according to the filing. But he changed his tone in the second meeting, the attorneys say in Tuesday’s filing.
Byrd said that Ravenell knew that Byrd was laundering money, and that Byrd would bring backpacks full of cash to Ravenell’s law office, according to the recording. Byrd said he was looking to recover some of his money, particularly from a casino investment.
Byrd asked Treem to destroy evidence of who was involved in the laundering, per the recording. Treem said he would not: “I can’t have him — I can’t advise him to delete stuff off his laptop. I can’t do that,” Treem said.
Treem also told Byrd that day that he couldn’t have him give untruthful testimony. “I can’t put you on the witness stand if you’re going to lie, and if I know you’re going to lie I can’t do that, because that gets me in a lot of trouble if that comes out,” Treem said, according to the recording. “I need to go kind of sit in my office and close the door and kind of play all this out.”
The government previously cited additional parts of the conversation, such as when Treem told Byrd: “I take you at your word that at no point you will become [the government’s] bitch.”
And prosecutors said that Treem drafted an unsolicited and false letter to U.S. District Judge Richard D. Bennett in 2018, recounting his meeting at the jail with Byrd but falsely stating that Byrd cleared Ravenell of wrongdoing.
The defense attorneys say Treem went to Bennett because he believed Byrd was going to blackmail and extort Ravenell. They say Byrd had called Gordon and said he would go to the U.S. Attorney’s Office if he didn’t get his money. While Treem had a duty to collect statements that could clear Ravenell, they say, he explicitly did not have to disclose damning information regarding his client.
Statements and evidence collected by defense attorneys are sensitive and generally protected to ensure they can “work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel,” according to one prior court ruling cited by attorneys for Treem, Ravenell and Gordon.
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There is a “crime-fraud” exemption to such communications if there is evidence that the client was committing or intending to commit a crime, and that the attorney-client communications were helping the alleged fraud or crime. But attorneys for Treem, Ravenell and Gordon said that couldn’t apply, because the government had no reason to believe Treem would do anything improper.
“The crime-fraud exception to the work product doctrine is inapplicable because the interview was conducted pursuant to the defendants’ constitutional obligation to investigate the case, not to commit or further any crime or fraud,” the attorneys wrote in their motion to dismiss.
By charging Treem, the government is also depriving Ravenell of the ability to use his preferred attorney, their lawyers argue.
“The government’s unjustified and flagrant violation of the defense’s due process and fair trial right to conduct a defense interview free of government surveillance, as well as its disregard of the work product doctrine, amounts to a severe violation of the Due Process Clause,” they say in another accompanying motion.
Federal authorities raided Treem’s law office in 2019, leading to an appeal by his law firm that resulted in a “filter” team of lawyers going through materials seized in order to ensure sensitive information not related to the investigation was not viewed. The criminal case is being heard by an out-of-state judge, Liam O’Grady, of the Eastern District of Virginia.
The prosecutor leading the case is Leo J. Wise, head of the fraud and public corruption unit, who has led some of the area’s biggest corruption cases in recent years and has irked the defense bar with his approach. He is leading the investigation of Nick and Marilyn Mosby, whose attorney has accused Wise of having a grudge and lodging a political witch hunt.
But Wise’s involvement in the Ravenell case is relatively new; the case was at the time of the recordings being handled by Assistant U.S. Attorney James Warwick.