71. The prosecutors decided to interrogate the employee without the attorney's presence. (Premeditation admitted). Conspiracy to committ a violation of the Sixth

Violation

Amendment.

72. He and the agent surreptitiously followed the wife for five days through the streets of Puerto Rico. (Admitted).

Fourth, Fifth, Sixth Amendments and the rules of the

Bar Association.

73. He and the agent interrogated the employee's ex-secretary without the attorney's knowledge. (Admitted). Violation

Amendment.

Sixth

74. He and agent interrogated the employee's replacement without the attorney's knowledge. (Admitted). Violation Sixth Amendment.

75. He and the agent interrogated the bank's chief executive officer without the attorney present. (Admitted). Violation Sixth Amendment.

76. He and the agent interrogated miscellaneous other employees without the attorney present. (Admitted). Violation

Sixth Amendment.

They

77. He and the agent attempted to interrogate the employee's children at school without the mother or attorney present. did, in fact, interrogate their teachers and principal. (Admitted). Violation Sixth Amendment and the laws of common decency.

78. He and the agent shadowed the childred after school, until (Admitted). Violation Fourth,

they met up with their mother.

Fifth, and Sixth Amendments.

79. He and the agent shadowed the three to their home.

(Admitted). Violation

Fourth, Fifth, and Sixth Amendments.

22

80. He and the agent then interrogated the wife and children before friends and neighbors, without the attorney, as to the

husband's whereabouts.

Sixth Amendments.

(Admitted). Violation

Fourth, Fifth, and

81. When informed that the employee was, indeed, in Canada, he and the agent attempted to induce the wife to influence her husband to submit to secret interrogation without the attorney. (Admitted). Violation Conspiracy to violate Sixth Amendment.

82. When confronted with the violation, the prosecutor admitted his awareness of the infractions. He stated that no case had ever been dismissed for such violations, that the only penalty normally imposed by the courts was the suppression of the evidence so gained, and that he hoped to avoid even that. But if he did, and he happened to get some good information, he would use it to try to develop the same information from another source and use it

that way.

(Admitted). Violation

Sixth Amendment.

Comment: The arrogation of an authority he did not possess and the intentional violation of citizens' constitutional rights were symptomatic of the entire investigation. His abysmal assuredness that he could get away with it was even more frightening. (Mental

attitude admitted).

and Sixth Amendments.

Statement of Fact:

Early on in the hearings regarding IRS and

prosecutorial misconduct, Judge Winner ordered government employees that were potential witnesses or targets sequestered.

That meant

they were not permitted any information as to testimony, nor were

23 they to discuss together their own past or future testimony with one another. The purpose was to ascertain that their testimony was pristine, spontaneous, truthful, and not colluded.

83. Within an hour after the order, one such witness, an

attorney who knew better, ordered the entire past transcript. (Admitted). Violation Contempt of court.

Statement of Fact: The DOJ relieved all possible witnesses, immediately, of court duties in the case for the balance of the proceedings; and it replaced them with Charles Alexander, a Senior Trial Attorney, Tax Division, DOJ.

84. On Sunday evening, before the testimony of the sequestered witnesses on Monday through Wednesday, Mr. Alexander conducted a three hour meeting with all of the sequestered witnesses, in direct violation of the order. The only conceivable purpose was colluding in the precise testimony the judge had ordered sequestered.

(Meeting admitted, purpose denied). Violation

Contempt, possibly

collusion to perjury.

85. When caught, the excuse offered was that they weren't discussing their testimony, they were discussing the facts of the case. That, of course, begged the judge's question, "To what are they proposing to testify, the non-facts?"

(Record of court

testimony). Violation Obstruction of justice.

86. After the meeting, the perpetrator of a temper tantrum, resulting in the mouthing of obscenities at the judge and a coat throwing incident in the courtroom in response to a ruling against him, denied its occurrence in the face of contrary testimony of five reputable disinterested witnesses. (Testimony). Violation

24

Obstruction of justice by colluding to perjury and possibly perjury.

87. The five restrainers of the tantrum all testified exactly the same way, "I don't remember." (Testimony). No violation

Memory not provable.

It

Comment: Each of the disinterested witnesses had variations as to the details, but they were fairly consistent in their description of the overall incident. That was normal and a recognized reality of truthful testimony. Different witnesses, possessing no collusion of their testimony, routinely described scenes differently. The DOJ possessed the gall to suggest that, since their testimony so perfectly coincided and was more consistent, it should be given more weight and credibility than testimony with variations! should be noted, also, that the meeting was not readily admitted. Rather, it was disclosed accidentally by one of the sequestered witnesses while on the stand, who had not thought of the incident until the meeting on Sunday night. It came out as the result of the following and obvious question. "What meeting was that, Ms. Serbough?" That was the only variation in their testimony, the others failed to mention the meeting.

Statement of Fact: The DOJ has an announced procedure that the target of a grand jury may request a review, prior to an indictment. The supposed purposes are: (1) A target is allowed to present his proposed defense, (2) If the defense has merit, the case or proposed indictment may be dropped if the higher echelon unbiased judge is convinced that no crime has been committed or that the evidence is insufficient to permit a conviction., (3) the procedure reduces costs for the DOJ for senseless prosecution,

(4)

25

15

The defendant saves the expense of a trial, (5) Needless embarassment is eliminated, and (6) The defendant's reputation that otherwise could be destroyed by an indictment for a non-existent or unprovable crime, can be salvaged. The reviewer supposedly occupies a quasi-judicial, unbiased position and passes judgment on whether the case should be prosecuted. In such hearings, the

defense lawyer is led to believe he can be fully candid about his theory of defense and his plans, with no concern that his words will be thrown back at him or that he has forewarned the other side of his tactics.

88. Robert Grossman, an attorney for the defendant, requested and received such a review and was given one Jared Scharf, a man represented to be, but who was not, a reviewer. Rather, he was a trial counsel for the department. (Admitted). Violation

Deception, deceit, and fraud.

89. Mr. Scharf, it later developed, was not only a trial counsel, he was the ranking investigator in this very case which he was now reviewing.

(Admitted). Violation

Fraud.

90. Mr. Scharf was not only the investigator, he, was also the lead prosecutor in charge in this case. (Admitted) Fraud.

Violation

The

Comment: It was tantamount to the judge first hearing the case, leaving the bench, taking sides and becoming the prosecutor. statement of the prosecutor was that they did it all the time. Thus, the defendant's counsel was tricked into disclosing his entire defense tactics to his opponent, months in advance of the trial. This permitted the prosecutor to arrange his case in anticipation of the defense.