by Gwen Moritz
Posted 11/1/2013 03:51 pm
Updated 10 months ago
Pulaski County Circuit Judge Wendell Griffen on Friday found that the U.S. Attorney's Office in Little Rock was in contempt of court for failing to pay three private defense attorneys the fees he had ordered more than a year ago.
"The conduct of the government in this case all but sickens me," Griffen said at the conclusion of a tense hour-long hearing Friday morning.
The case is a convoluted one involving a former USA Drug marketing executive, Garret Sorensen. While federal prosecutors were ultimately successful in getting Sorensen to plead guilty, they were sanctioned by Griffen — and, briefly, by U.S. District Judge Bill Wilson — for improperly moving a related civil case out of Griffen's state court and into federal court.
The government's "willful disobedience" to his order, Griffen said, "is consistent with the way the United States has behaved since its intervention in the case."
First Assistant U.S. Attorney Patrick Harris promptly delivered checks totaling $12,702 to the three attorneys — Pat James, Erin Cassinelli and Chuck Banks — and thereby avoided an additional fine of $300 per day for any further delays in complying with the sanctions Griffen imposed on Sept. 12, 2012.
But Harris formally objected to the sanctions and the fees, and U.S. Attorney Christopher Thyer said the government had merely been waiting for Griffen to close the case so that an appeal of the sanctions could begin.
"Yes, it could have been done a year ago had he entered an order," Thyer told Arkansas Business. "We'd be at the [state] Supreme Court by now."
Thyer also told Arkansas Business that his office still does not agree with the two judges' conclusion that it was wrong for federal prosecutors to move the civil case from state court to federal court.
"What we said [to Judge Wilson] was that we wouldn't do it again," he said, referring to a successful motion to have Wilson lift his sanctions.
In his written order, filed within an hour of adjournment of the hearing (PDF), Griffen wrote: "The persistent refusal to comply with court rulings shows that, at least in this instance, the United States is an exception to the notion that one grows wiser with the passage of time."
The essence of Harris' argument at Friday's hearing was that voluntarily paying the attorneys' fees associated with the sanctions imposed by Griffen would effectively waive the federal prosecutors' right to appeal. Meanwhile, Griffen had refused to dismiss the civil case, as all parties wanted, until the attorneys' fees were paid, and no appeal could be filed until a final order was entered closing the case.
Under questioning by Griffen, Harris acknowledged that the prosecutors had never raised their concerns about waiving the right to appeal until last week, in a brief filed in advance of Friday's hearing. On that point, Griffen agreed with James, who said he thought there was a difference between voluntarily paying a judgment, which would waive the right of appeal, and complying with sanctions ordered by a judge.
Harris repeatedly told Griffen that federal prosecutors meant no "willful disobedience" of his September 2012 order.
"We're not trying to get out of paying the attorneys' fees," Harris said. "We're just trying not to give up our right to appeal by paying them early."
But Griffen was not persuaded, especially when Harris acknowledged that the government had the means to pay the fees and had not forgotten about the sanctions.
"If you can do what you don't forget to do, and you don't do it, how is that not willful disobedience?" the judge asked.
He also said he found it "more than slightly unpersuasive" that the federal government couldn't figure out a way to comply with his order without giving up its right to appeal. And he scoffed at Harris' suggestion that the fact that Griffen's order didn't specify a deadline for paying the fees meant the government was not in contempt of the order. The judge said he believed he had the authority to impose a daily fine dating back to 30 days after his order was entered but had chosen not to do so.
Garret Sorensen, his wife, Katherine, and her sister, Shannon Walters, were indicted by a federal grand jury in Little Rock in 2009 for allegedly bilking hundreds of thousands of dollars from his employer by setting up a side business and running USA Drug advertising through it.
Garret Sorensen ultimately pleaded guilty to money laundering and mail fraud in May 2012 and is currently serving a 33-month sentence in federal prison. The charges were dismissed against Katherine Sorensen, who was represented by Cassinelli, and Walters, who was represented by Banks.
But while the criminal case was pending in federal court, the owner of USA Drug at the time, LaFrance Holding Inc. of Little Rock, simultaneously pursued an almost identical civil case against the Sorensens and Walters in state court.
Wilson, the federal judge in the criminal case, had denied the Sorensens' request to depose witnesses in the criminal case. But two Pulaski County Circuit Court judges, first Ernest Sanders and then Judge Griffen, had refused to stop depositions of members of the LaFrance family from proceeding in the civil case.
Federal prosecutors, in what Wilson called "an attempt to avoid legitimate discovery in a civil action," then unilaterally moved the LaFrances' civil case out of state court and into federal court.
Wilson also refused to stop the civil depositions, leading to an almost comic incident in November 2011 in which Garret Sorensen and his attorney in the civil case, Pat James, attempted to depose Jason LaFrance in the garage of his home on Edgehill Road, one of Little Rock's most prestigious residential streets.
Wilson subsequently ordered sanctions against the federal prosecutors and sent the civil case back to Griffen's court. At the government's request, Wilson eventually vacated his order of sanctions against the U.S. Attorney's office, but Griffen imposed his own.
When Wilson withdrew his sanctions, he noted that federal prosecutors had not offered "an unalloyed concession" that the unilateral decision to remove the civil case to federal court was improper, "but it does indicate that the Government understands that is procedure was inappropriate."