The Senator Strikes Back: Calderon Seeks Sanctions on Prosecution

Embattled State Senator Ron Calderon this week filed a blistering motion in Federal Court in Sacramento, seeking to sanction the government for allegedly leaking a sealed search warrant affidavit to Al Jazeera USA.

The motion, explicitly intended for public consumption, was prominently labeled “TO BE FILED PUBLICLY – NOT TO BE PLACED UNDER SEAL.”  Directed at both the court and the press, it’s baldly intended to create a counter-narrative to the uniformly dismal press coverage of Senator Calderon, who – according to the published search warrant affidavit – accepted $88,000 in bribes from an undercover FBI agent and others.

Calderon’s attorney, Mark Geragos, claims the following in the motion:

  • The FBI approached Calderon on “six separate occasions” and asked him to wear a wire to secretly record conversations with Senate President pro tem Darrel Steinberg, and Senator Kevin de Leon.
  • Right after Calderon refused to cooperate in early June 2013, the FBI retaliated by raiding Calderon’s office.
  • The search warrant affidavit included “false and defamatory allegations” about Calderon.
  • There has been a “pattern of illegal leaks” coming from the office of Doug Miller, the Assistant United States Attorney in charge of the investigation.
  • Calderon has evidence that Al Jazeera reporters were in prior contact with the FBI public information officer prior to the release of the sealed affidavit.

Geragos, a colorful defense attorney experienced in high profile cases, demanded that the court hold the government in contempt for violating the magistrate judge’s order sealing the FBI affidavit, and impose sanctions.  What’s fire and what’s smoke in his motion?

Geragos is fully justified in asking the Court to discipline the government over the leak.  As previously blogged, this is a leak that never should have happened, and it is most likely that it came from the government camp (the only other possible source being the court itself, which would appear to be less likely).  This case provides an object lesson in why the law requires search warrant affidavits and grand jury materials to remain sealed prior to indictment:  the allegations in them are extremely damaging to the reputations and livelihood of suspects, who must be presumed innocent until proven otherwise.  At this point, even if the government never files a single charge against Senator Calderon, his political career is fatally damaged.

Geragos’ claim that the feds asked Calderon to wear a wire appears credible, particularly since it is evidenced by a receipt documenting the return of the recording equipment.  But were the intended targets really Senators Steinberg and de Leon, as Calderon claims?  Steinberg and de Leon have each reportedly received letters from the government stating that they are not targets of an investigation.  Was Calderon  asked to wear a wire against other targets persons instead?  Are his claims that Steinberg was under investigation payback for Steinberg’s decision earlier this week to strip Calderon of his committee assignments?

Other allegations in the Calderon motion should be viewed with more skepticism.  Consider Geragos’ suggestion that the raid on the Calderon offices, and the leak of the search warrant application, were retaliation for Calderon refusing to cooperate.  Calderon says he was approached by the FBI in June 2013.  This would have been a year after (as alleged in the affidavit) Calderon took bribes from the undercover FBI agent “Rocky Patel.”  By the time the FBI approached Calderon, they would have felt they had a solid case on him, and would have been comfortable “rolling the dice” to see if they could leverage him into cooperating.  If he refused, then the logical next step would have been to execute the search warrant immediately – not to retaliate, but to preserve evidence in the possession of a target who knew he was under investigation.  Failing to promptly a search in such a scenario would have amounted to prosecutorial malpractice.

Finally, Geragos’ claim that ASUA Doug Miller has a history of leaking documents is a serious charge that must be scrutinized closely.  It is true (as Geragos charges) that that Miller “was involved in the investigation into steroid use in major league baseball in 2003-2004” and also true that a grand jury transcript was leaked to the press in that case.  Technically true — but Geragos is really throwing a spitball with with these selective facts.  The leaker in that case was not the government, but a defense attorney, Troy Ellerman – who was sentenced to 2 ½ years in prison for showing the grand jury testimony of Barry Bonds and other ballplayers to the San Francisco Chronicle.  What was Miller’s role in that case?  He was one of the prosecutors brought in to investigate the leaks – and was ultimately the guy who convicted Ellerman.

So, some fire and a whole lotta smoke in Calderon’s  motion.  The contempt request has been assigned to District Judge Troy Nunley, who, following the filing of the motion, issued a standard civil order requiring the parties to appear for a joint status conference.  Who leaked the search warrant affidavit remains a mystery.

Leave a Reply

Post Navigation