In the latest “Broadview Six” fallout, a federal judge overseeing a high-profile COVID-19 testing fraud case has ordered what would be a bombshell evidentiary hearing into potential misconduct by the U.S. attorney’s office — with no witness apparently off limits.
If it goes forward, the hearing scheduled for June 17 could force many top-line officials in the U.S. attorney’s office — including U.S. Attorney Andrew Boutros and his top deputies — to testify under oath about what they knew about the grand jury issues and why attempts appeared to have been made to cover them up.
In making her ruling, U.S. District Judge Sharon Johnson Coleman told prosecutors in court Wednesday “there are a lot of people in your sphere that I am assuming are going to be asked to come testify,” though she did not name anyone specifically.
Coleman said that as a “lifelong prosecutor” at both the federal and state levels before becoming a judge, the issues at stake are too serious to simply resolve with legal briefs. “I need testimony,” she said.
“I know this circle, I know this sphere,” Coleman said. “And so the court wants to do right by this.”
Coleman told the defense to get their list of witnesses to the government by Friday, and the judge did not appear to put any limits on whom they might call.
Earlier in the hearing, Assistant U.S. Attorney Diane MacArthur told the judge that there were pending negotiations between the parties that could see the case resolved short of trial, and suggested that an evidentiary hearing on the defense motion to dismiss the indictment could wait.
But Gabrielle Sansonetti, who represents Mahmood Sami Kahn, said she had just received a call from the government about a potential deal an hour and a half before the hearing, and they were not in a position to agree to any delay.
Coleman held the prosecutor’s feet to the fire, saying there was only “one way to avoid” such a hearing, “and I think you know what that is” — clearly a reference to her office dismissing the charges altogether.
The case before Coleman involves sweeping allegations of COVID-19 testing fraud against ex-Loretto Hospital executive Anosh Ahmed and three alleged co-conspirators: Mohamed Sirajudeen, Suhaib Ahmad Chaudhry, and Kahn.
Lawyers for Ahmed, who is jailed in Serbia and challenging extradition, on Tuesday asked to join a push to dismiss the indictment based on alleged misconduct in the grand jury by Assistant U.S. Attorney Sheri Mecklenburg, including vouching, disclosure of off-the-record negotiations with a defense attorney, and “inflammatory characterizations of the defendants, including name-calling and folk-wisdom metaphors.”
Grand jury transcripts in the “Broadview Six” case released Tuesday revealed Mecklenburg had engaged in startlingly similar conduct in that case.
Ahmed’s three co-defendants had been set for trial on July 9. But Coleman canceled that date at the hearing on Wednesday, which she said was supposed to be a pretrial conference but instead had been “hijacked.”
Coleman declined to let Ahmed join in the motion to dismiss until further briefing was held, saying the fact that he is overseas and not been arraigned on the case puts him on a “different track” than his co-defendants.
Ahmed is also charged in a separate case alleging he conspired with then-Loretto Hospital CEO George Miller and others to steal money from the West Side facility through a fraudulent billing scheme.
The development before Coleman was the strongest signal yet that the scandal ignited by the Broadview Six case against Operation Midway Blitz protesters may only be getting started.
If the evidentiary hearing goes forward, it would be the most significant inquiry into potential prosecutorial misconduct by the U.S. attorney’s office since the mid-1990s, when a trio of judges concluded that Assistant U.S. Attorney William Hogan and others had improperly given favors — including conjugal visits in government offices — to cooperators against leaders of the violent El Rukn street gang.
More than 30 years later, Hogan is at the center of the Broadview Six controversy after taking over the case in February when Mecklenburg left the office for a job in Washington, D.C.
The transcripts released Tuesday revealed that after a grand jury had refused to indict the protesters on conspiracy charges, prosecutors returned a week later to try again, but ran into even more skepticism. One grand juror went so far as to call the case a “crock of (expletive),” while at least one other was dismissed by Mecklenburg after refusing to participate in a vote.
Mecklenburg also improperly “vouched” for the case, telling the grand jury repeatedly she would “never” ask them to charge anyone if she didn’t think there was probable cause. She also had improper contact with two grand jurors outside the official proceedings that she later had to put on the record as a “mea culpa,” the transcripts showed.
Hours before the transcripts were released, MacArthur was in front of another judge on Tuesday in a different fraud case that everyone thought was long over.
Instead, lawyers for Yale Schiff, who pleaded guilty to bank fraud and is serving a three-year prison sentence, were demanding that U.S. District Judge Mary Rowland take a look at the transcripts of the long-ago grand jury sessions behind Schiff’s indictment, which were also handled by Mecklenburg.
After the Broadview Six charges were abruptly dismissed last month, Boutros promised his office was conducting a thorough review of every case Mecklenburg — a 20-year veteran of the office — had handled, and would proactively reach out to defense attorneys to provide normally secret grand jury “minutes” to assess if any wrongdoing had occurred.
On Tuesday, however, the U.S. attorney’s office was objecting to doing that in Schiff’s case — at least immediately.
MacArthur told Rowland during a telephone hearing that since Schiff had pleaded guilty, he may have waived any collateral attack on his conviction, making the production of any grand jury materials moot. She asked for time to look into the legal issues and file a brief.
Rowland said ordinarily that may be a very strong argument. But times have changed at the U.S. attorney’s office.
“The front office has created, as you know, a credibility crisis, and that is a real problem,” Rowland told MacArthur. The judge ordered MacArthur to turn over the transcripts to her next week so she could review them privately and see if there were any issues.
After court, Schiff’s attorney, Christopher Parente, blasted the U.S. attorney’s office for taking a position seemingly “at odds” with Boutros’ own public statements about transparency.
“The prosecutor acknowledged that the U.S. Attorney’s Office had not even bothered to order the transcripts despite requests from myself for the past two weeks,” said Parente, who also represents one of the former Broadview Six defendants.
On a separate track, lawyers for the Broadview Six are ramping up for what could turn into lengthy hearings over alleged prosecutorial misconduct, focusing not only on Mecklenburg but also decisions by others in the office to redact large portions of the grand jury transcript that was handed to U.S. District Judge April Perry for review.
Hogan told Perry last month that he was the one who made the decisions on redactions. “I’ll take responsibility for it,” he said.
The defense is also seeking any communications potentially showing the White House put pressure on the U.S. attorney’s office to indict the controversial case, including from acting Attorney General Todd Blanche and top deputy Aakash Singh, who has been deeply involved in immigration-related prosecutions across the country, including Midway Blitz.
As the controversy has intensified, a growing number of local Democratic officials, including Illinois Sens. Dick Durbin and Tammy Duckworth, have called for Boutros to resign, and earlier this week a group of more than 100 former Chicago federal prosecutors released an open letter saying Boutros has “tarnished the reputation” of the storied office and demanded he “stand above and apart from political fealty.”
Boutros, meanwhile, has said he was completely unaware of Mecklenburg’s inappropriate vouching and ex-parte communications with the Broadview Six jurors until late April and moved to dismiss the felony indictment immediately after hearing about it.
“That was the first time any issue of vouching rose to my level, and, frankly, to the level of anyone in the front office,” Boutros told Perry at the May 21 hearing where the remaining misdemeanor counts were dropped. “I will also tell your honor that I was completely unaware of any ex-parte communications that took place in the third instance until I became aware of the grand jury transcripts.”
Boutros also said, however, he was aware in “real time” of the excusing of grand jurors that had taken place in the second grand jury session and that he “immediately called off that grand jury session.”
He said he notified U.S. District Chief Judge Virginia Kendall, who oversees the grand juries in the district, of the issues, and that his office decided to go back before the same grand jury a third time to avoid the appearance of any improper “forum shopping.”
Before that final session began, Boutros himself made a rare appearance before the grand jury and gave a pep talk about their constitutional duties, according to an unusual report released by Boutros’ office last week.
He also told jurors that if they felt like they could not be impartial in immigration-related cases, “I would ask that you raise your hand and identify yourself, because we have a different procedure for that.”
Boutros defended his appearance before the grand jury in his report, saying its importance “cannot be overstated” given the animosity and bias that had shown itself in previous grand jury sessions.
“In such uncharted and unprecedented circumstances, extraordinary measures may be required to restore the rule of law,” the report stated in a “conclusion” paragraph.
jmeisner@chicagotribune.com
