IN THE UNITED STATES DISTRICT COURT FOR THE

STATE OF FREEDONIA

CASE No. 123 D.F . 456

UNITED STATES OF AMERICA,

PLAINTIFF,

vs.

SAMANTHA CLARK,

DEFENDANT.

__________________________________________________________________

_____

ON THE DISCRETIONARY REVIEW FROM THE

DISTRICT COURT OF APPEAL, DISTRICT OF FREEDONIA

CASE NO. 123 D.F . 456 DECIDED, JULY 31, 2012

__________________________________________________________________

_____

DEFENDANT SAMANTHA CLARK’S REASONING TO OVERTURN

CONVICTION OF SOLE COUNT OF VIOLATING 18 U.S.C. §1001

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Heather L. Kott, NPC Student 4104 Shagbark Dr, Main entrance. Killeen, Tex. 76542 (517) 745-4868 (Kott)

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TABLE OF CONTENTS

Page

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Issues Presented For Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

WHETHER A CRIMINAL DEFENSE ATTORNEY MAY BE

CRIMINALLY PROSECUTED FOR LYING TO FEDERAL

AUTHORITIES DURING PLEA NEGOTIATIONS ON BEHALF OF A

CLIENT.

Statement of the Case and facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-9

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11-21

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22-23

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate of Compliance with Font Requirement . . . . . . . . . . . . . . . . . . . . . . . . .25

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TABLE OF CITATIONS

Statute And Other Legal Authorities Page

18 U.S.C.S, § 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Attorney Client Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17-19

State Adoptions Of The Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20-21

Cases Page

Paternostro v. United States,

311 F.2d 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-16

Fisher v. United States,

231 F.2d 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17

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PREFACE

In this Brief, the Defendant SAMANTHA CLARK will be referred to as

CLARK. The Plaintiff, The United States Of America will be referred to as Judge

Haas. The following symbols will be used:

(R ) - - Record on Appeal.

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ISSUES PRESENTED FOR REVIEW

WHETHER A CRIMINAL DEFENSE ATTORNEY MAY BE CRIMINALLY

PROSECUTED FOR LYING TO FEDERAL AUTHORITIES DURING

PLEA NEGOTIATIONS ON BEHALF OF A CLIENT.

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STATEMENT OF THE CASE AND FACTS

Samantha Clark has been a practicing criminal defense attorney in the state of

Freedonia since 1993. On January 20, 2012, Thomas Vail was arrested in Free City

for identity theft. He was accused of stealing at least four credit cards and using

them to make more than $50,000 in purchases between March and July of 2011.

After being arrested, Vail promptly called Ms. Clark to help him with his de-

fense.On March 20, 2012, Clark met with Assistant United States Attorney Patrick

Muss, who was assigned to prosecute the case, to discuss the possibility of a plea

agreement between Vail and the government. At that meeting, the discussion turned

to a $5,000 charge allegedly made by Vail on April 29, 2011 while using the credit

card of one Mr. Benjamin Florentino. All parties agree that the relevant part of the

conversation went like this:

Muss: “Sam, listen, that $5,000 charge was a serious theft. Flo-

rentino ended up spending months and a lot of heartache trying to

erase that fraudulent charge from his card. Tell me the truth, did

your client make that charge?”

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Clark: “Tom didn’t make that charge. That charge was made in

Free City. That week, Tom was away in Minneapolis on vacation.”

Muss: “Come on, Sam, we’re putting all cards on the table, right?

I’m willing to play ball, but you have to be forthcoming with me.

What’s the real story? Did he make the charge?”

Clark: “Listen, Pat, as far as I know, Tom did not make that par-

ticular charge. I firmly believe he was in Minnesota that entire

week.”

Muss: “Are you sure?”

Clark: “Pat, I’ve been working on cases against you for what, 15

years now? We’ve opposed each other a lot and I think we’ve

worked well together. Haven’t we? The one thing you know is that

I don’t lie to you. Well, I’m telling you now that I believe that Tom

did not made that charge.”

Vail pled guilty to various fraud charges in exchange for a sentence recommenda-

tion of no more than 18 months in prison by the U.S. Attorney’s office. At his allo-

cution on April 12, 2012, Vail admitted to making the charge on Benjamin Flo-

rentino’s credit card on April 29, 2011. Later, when asked by the federal authori-

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ties, he told them that he had admitted to Clark the first time they had met that he

was guilty of making that charge. Clark was subsequently arrested an indicted on

one count of making a false statement to a federal authority, in violation of 18

U.S.C. §1001.

Defendant, Samantha Clark, was indicted in 2012 and charged with violating 18

U.S.C. §1001 for lying to a federal prosecutor. After a jury trial, Defendant was

found guilty of the sole charge in the indictment. Defendant moved to dismiss the

charges on the grounds that:

a) §1001 does not apply to defense attorneys’ conversations with federal prosecu-

tors; and

b) If it were to apply, §1001 would be unconstitutional as applied to this case be-

cause it violates the criminal defendant’s right to a fair trial.

Both of Defendant’s contentions are rejected. Nothing in the legislative history or

case law suggests that Congress meant to exempt criminal defense attorneys from

the scope of §1001 and this court sees no grounds upon which to judicially create

an exception. §1001 is not unconstitutional as applied as the Constitutional right to

competent representation does not include the right to have your attorney lie to the

authorities. The defendant’s conviction is upheld.

(R )

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SUMMARY OF ARGUMENT

Defendant does not challenge the jury’s verdict in that Defendant acknowledges

that she lied to Assistant US Attorney Muss in the court of the above referenced

conversation.

Defendant’s contentions rest on two central ideas:

1) Defendant argues that Congress could not have meant to include defense attor-

neys in the scope of §1001 because it is clear that defense attorneys owe a client

the duty of loyalty. This duty prevents defense counsel from disclosing confidential

information. Therefore, defendant argues, there must be an exception for defense

attorneys in the court of their representation of criminal defendants. If Congress

did not explicitly create this exception, defendant argues, it is because they were

not thinking of every possible scenario. Therefore, Defendant urges this court to

judicially create an exception to §1001 for defense attorneys in the course of a rep-

resentation of a criminal defendant.

2) Defendant argues that if §1001 were applicable to this case, it would be uncon-

stitutional, as applied. Defendant points out that each criminal defendant has a duty

of loyalty and zealousness to his or her client. Defendant argues that the specter of

prosecution for making false statements during plea negotiations would prevent de-

fense attorneys from zealously representing their clients in such negotiations.

ARGUMENT

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Title and Statute 18 USCS § 1001

The title and statute of 18 U.S.C.S, § 1001 in whole states that, statements or en-

tries generally,

(a) Except as otherwise provided in this section, whoever, in any matter

within the jurisdiction of the executive, legislative, or judicial branch of the

Government of the United States, knowingly and willfully--

(1) falsifies, conceals, or covers up by any trick, scheme, or device a

material fact;

(2) makes any materially false, fictitious, or fraudulent statement or

representation; or

(3) makes or uses any false writing or document knowing the same to

contain any materially false, fictitious, or fraudulent statement or entry; does

not apply if subsection (b) does.

(b) Subsection (a) does not apply to a party to a judicial proceeding, or that

party's counsel, for statements, representations, writings or documents

submitted by such party or counsel to a judge or magistrate in that

proceeding.

Subsection (b) applies because Samantha Clark was in fact at the time the state-

ment was made, a party’s counsel and cannot be held liable for statements, repre-

sentations, writing or documents submitted by such a party in that proceeding.

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Subsection (a) cannot possibly pertain to my client because although she made a

false statement, the statute goes on to further state that;

(c) With respect to any matter within the jurisdiction of the legislative

branch, subsection (a) shall apply only to administrative matters, including a

claim for payment, a matter related to the procurement of property or

services, personnel or employment practices, or support services, or a

document required by law, rule, or regulation to be submitted to the

Congress or any office or officer within the legislative branch; or any

investigation or review, conducted pursuant to the authority of any

committee, subcommittee, commission or office of the Congress, consistent

with applicable rules of the House or Senate..”

Since subsection (a) of the statute is over ruled by subsection (b) and subsection (c)

does not apply the courts should overturn the motion for Clarks conviction of 18

USCS § 1001.

Paternostro v. United States, 311 F.2d 298

Although The United States District Court For The District Of Freedonia ruled in

error when trying to apply 18 U.S.C.S. § 1001, in the case of Paternostro v. United

States, 311 F.2d 298, this case states in part, that defendant was charged wrongfully

and overturned his conviction. Below are excerpts from the case that states exactly

the points that are dire for the overturning of Samantha Clarks conviction as well.

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(A)Appellant was convicted of knowingly and willfully making a

false statement to a special agent of the U.S. Internal Revenue Service

in violation of 18 U.S.C.S. § 1001.

(B)Appellant challenged his convictions by a United States District

Court for knowingly and willfully making a false statement to a

special agent of the U.S. Internal Revenue Service in violation of 18

U.S.C. STATUTE 1001.

Just the same as Samantha Clark, Paternostro was propounded by federal agents to

answer question(s) they knew couldn’t simple be answered without self incrimina-

tion or breaking attorney- client privilege She answered the same question twice, in

the negative. See bulletins (C) and (D).

(C)Appellant contended that § 1001 had no application to his case

because he merely answered in the negative to certain questions

propounded by federal agents. The appellate court agreed, holding that

mere negative answers did not constitute "statements" within the

meaning of § 1001.

(D)Negative answers, even under oath, to questions propounded by

agents of the Federal Bureau of Investigation are not “statements"

within the meaning of 18 U.S.C.S. § 1001.

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(E)A literal construction of a statute is not to be resorted to when it

would bring about absurd consequences, or flagrant injustices, or

produce results not intended by Congress.

(F)Appellant filed his motion to dismiss Count One of the indictment

for the reason that title has no application to the factual situation

herein presented. During the investigation mentioned, a special agent

of the Intelligence Division of the Internal Revenue Service

administered an oath to the appellant and propounded certain

questions to him concerning the alleged illicit income which was the

subject of the investigation. The answers of the appellant were

essentially 'No' or negative and these answers were later deemed to be

false. This case squarely places before this Court the question of

whether mere negative answers to certain questions propounded by

Federal agents constitute 'statements' within the meaning of that word

as it appears in statute 1001.

Judge Haas stated in the previous court proceedings, the following; “This case

presents a difficult matter of first impression in this circuit. This court has been

charged with deciding whether a criminal defense attorney may be criminally pros-

ecuted for lying to federal authorities during plea negotiations on behalf of a client.

Because I do not believe that I have the authority to judicially create exceptions to

federal laws and because I see nothing unconstitutional about the manner in which

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the statute was applied in this case, I am forced to answer this question in the af-

firmative.” (R ) Which his findings on the matter are incorrect. See bulletin (G),

below.

(G)The position of the appellant is not novel or new. The question has

been considered by a number of Circuit and District Courts.

(H)A literal construction of a statute is not to be resorted to when it

would bring about absurd consequences, or flagrant injustices, or

produce results not intended by Congress.

(I)The appellant in the case at bar made no statement relating to any

claim on his behalf against the United States or an agency thereof; he

was not seeking to obtain or retain any official position or

employment in any agency or department of the Federal Government;

and he did not aggressively and deliberately initiate any positive or

affirmative statement calculated to pervert the legitimate functions of

Government. At most, assuming that appellant's answers to the agent

were proved to be false by believable and substantial evidence,

considering all he said, the answers were mere negative responses to

questions propounded to him by an investigating agent during a

question and answer conference, not initiated by the appellant. We

conclude that the court erred in failing to dismiss Count One of the

indictment.

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Also in this case the judges agreed that the Government agency is immaterial, all

“policemen” should be treated the same. So how can we convict one under the cir-

cumstances of one government agency over another? See bulletin (J).When sus-

pects talk with policemen like the NYPD, they aren’t held to be found guilty of vi-

olating 18 U.S.C.S. § 1001.

(J)The Government agent to whom the answer is given be an agent of

the F.B.I., a 'policeman', or an Internal Revenue agent, is of little

consequence. The same rule should apply to all 'policemen', and

therefore we cannot approve one rule for one type of agent and

another rule for an agent of another department of the same

Government. Under the facts and in the circumstances of this case, the

Internal Revenue agent who initiated the interview was performing

essentially the functions of a 'policeman' or investigative agent for the

Government. The statement attributed to the defendant Paternostro is

unquestionably an 'exculpatory no’.

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Fisher v. United States, 231 F.2d 99

Although my client admits to the undeniable phone conversation between her and

Assistant United States Attorney Patrick Muss, she should be protected from being

convicted on one sole count of her indictment, via the only evidence from Muss is

the phone conversation. See bulletin (A).

(A)The uncorroborated testimony of one witness is not enough to

establish that falsity applies in subornation as well as in perjury cases.

The corroboration rule is a protection against unfounded prosecutions,

and implicit in its evolution and continued vitality is the fear that

innocent witnesses might be unduly harassed or convicted in perjury

prosecutions if a less stringent rule were adopted.

Attorney client privilege

Although she concealed a material fact she must hold to her attorney client privi-

lege ethics. Which states, that the attorney–client privilege is one of the oldest rec-

ognized privileges for confidential communications.The United States Supreme

Court has stated that by assuring confidentiality, the privilege encourages clients to

make "full and frank" disclosures to their attorneys, who are then better able to

provide candid advice and effective representation. In order for attorney client

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privilege to be established with a potential client, these elements must be met. All

of them must be met.

(A)The elements necessary to establish the attorney client privilege

are: The asserted holder of the privilege is (or sought to become) a

client; and The person to whom the communication was made: is a

member of the bar of a court, or his subordinate, and in connection

with this communication, is acting as an attorney; and the

communication was for the purpose of securing legal advice.

All of these elements for attorney client privilege, were met when her client

Thomas Vail, came to her looking for legal advice, and legal representation.

Even so, the elements have been met, there are exceptions to the attorney

client privilege which are stated in bulletin (B). Which none of these excep-

tions allowed my defendant Samatha Clark to reveal such information that

Assistant United States Attorney Patrick Muss was looking for, thus her rea-

soning for the falsity of her statements to him.

(B)There are a number of exceptions to the privilege in most

jurisdictions, chief among them, the communication was made in the

presence of individuals who were neither attorney nor client, or was

disclosed to such individuals. Or the communication was made for the

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purpose of committing a crime or tort. Lastly, the client has waived

the privilege (for example by publicly disclosing the

communication).A corollary to the attorney–client privilege is the

joint defense privilege, which is also called the common interest

rule.The common interest rule "serves to protect the confidentiality of

communications passing from one party to another party where a joint

defense or strategy has been decided upon and undertaken by the

parties and their respective counsel.”

Lastly, my client spent four years pursuing her career, and has been a prominent

practicing legal, criminal defense attorney for eleven years, why would she throw

away all this hard work for one false statement? While in law school attorney

ethics are taken very seriously, and she could lose her job and have lawsuits under

attorney ethics for not following these very important guidelines. See bulletin (C).

(C)An attorney speaking publicly in regard to a client's personal

business and private affairs can be reprimanded by the bar and/or

disbarred, regardless of the fact that he or she may be no longer

representing the client. Discussing a client's or past client's criminal

history, or otherwise, is viewed as a breach of fiduciary

responsibilities.

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State adoptions of the Rules

Judge Haas states that “The Model Rules, even if enacted by states, are not federal

law and must yield if contradicted by federal law, under the Supremacy Clause of

Article VI of the United States Constitution.1 Therefore, even if attorney ethics

rules enacted by the state would require Defendant to act exactly as she did in this

scenario, any such rule would be overridden by §1001 and would be void as to this

case.” (R ) Even though they are triumphed by Federal Law, these guidelines

have been adopted by 49 states in the united states and are backed by the Supreme

Court of The United States. If they weren’t important or necessary why would the

Supreme Court back the states and allow them to adopt the guild lines, and why

would the Supreme Court allow clients to sue in violation of these rules when their

attorneys step away from them?

(A)The ABA is a voluntary bar association without lawmaking power

(meaning that it is just like any other nongovernmental professional

association). Accordingly, the Model Rules are not legally binding in

and of themselves. However, they have been adopted, in whole or in

part, as the professional standards of conduct by the judiciaries or

integrated bar associations of 49 U.S. states. Rules adopted in a

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particular state (that may be based upon the Model Rules) are legally

enforceable against the lawyers of that state as well as any lawyer

practicing there temporarily on a pro hac vice basis. New York's

version of the Model Rules was created by adjusting the standard

Model Rules to reflect indigenous New York rules that had been

incorporated over the years into its version of the Model Code. Even

though New York did not adopt the Model Rules verbatim, the

advantage of adopting its overall structure is that it simplifies the

professional responsibility training of New York lawyers, and makes it

easier for out-of-state lawyers to conform their conduct to New York

rules by simply comparing their home state's version of the Model

Rules to New York’s version. Among the portions of the Model Rules

that the Maine Rules of Professional Conduct do not include is Model

Rule 1.8(j) (2002) categorically prohibiting sexual relations between

lawyer and client.

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CONCLUSION

For the foregoing reason, the judgement on appeal must be affirmed in all respects.

The motion to overturn CLARK’S conviction is exceedingly persuasive. The Unit-

ed States of America, ruled in error. According to the statute, the cases above and

other valid and very important information, Samantha Clarks conviction should be

overturned. She did her job, and protected her client, and the private information

he shared with her to receive the proper legal guidance. Without the attorney client

privilege the justice system would be incomplete, unjust, and wouldn’t hold the

beauty of the American way of life, a fair and speedy trial. Miss Clark, represented

her client with dignity and justly according to her educational teachings at a presti-

gious and accredited instiutute. Even for a federal agent, Miss Clark stuck to the

ethics that were drilled into her brain, in law school. I firmly believe congress

meant to exempt attorneys from Title 18, Statute 1001. I also believe the courts do

have jurisdiction over the matter of fact and have the ability to overturn her convic-

tion and allow the argument the fairness it deserves.

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Heather L. Kott, NPC Student 4104 Shagbark Dr, Main entrance. Killeen, Tex. 76542 (517) 745-4868 (Kott) By:____________________________ Heather L. Kott NPC Student

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CERTIFICATE OF SERVICE

I CERTIFY that this copy of the foregoing has been furnished, by computer,

through the assignment admissions portal to NPC graders on this 1st day of Sep-

tember, 2014. From: Heather L. Kott, NPC Student .4104 Shagbark Dr,

Main entrance. Killeen, Tex. 76542 (517) 745-4868 (Kott)

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CERTIFICATE OF COMPLIANCE WITH FONT REQUIRMENT

I certify that this brief was typed in 14-point Times New Roman Font.

Heather L. Kott, NPC Student 4104 Shagbark Dr, Main entrance. Killeen, Tex. 76542 (517) 745-4868 (Kott) By:____________________________ Heather L. Kott NPC Student

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