LITTLE ROCK — U.S. District Judge Bill Wilson agreed Friday to vacate a $4,000 sanction he imposed earlier this year against the U.S. attorney’s office.
On Feb. 1, Wilson ordered the government to pay the money into the registry of the court as punishment for transferring a state-court civil case directly into a pending federal criminal case “in an attempt to thwart legitimate state-court civil discovery.”
Wilson also ordered Little Rock attorney Ryan Solomon to pay $10,000 in fees and costs for violating civil discovery rules in the civil case, after that case was transferred without authorization into Wilson’s court, which had the criminal case.
Wilson remanded the civil case back to Pulaski County Circuit Court, and ordered Solomon, who was then with the Rose Law Firm, to pay the fees and court costs stemming from a special hearing Wilson called to address the “shenanigans” surrounding a scheduled deposition in the civil matter.
Solomon, who later left the Rose firm, paid the fees and costs as directed, but the U.S. attorney’s office appealed its sanction to the 8th U.S. Circuit Court of Appeals at St. Louis.
Meanwhile, the criminal case in Wilson’s court was resolved on May 2, the day a month-long trial for the three defendants was to begin, when one of them pleaded guilty and prosecutors dropped charges against the other two.
On May 18, Karen Whatley, senior litigation counsel for the U.S. attorney’s office, filed a motion seeking relief from the $4,000 penalty.
Whatley said the government “has reconsidered the appropriateness of removal as a means for dealing with state court discovery that impinges on federal criminal prosecutions, and does not intend to use the removal statute to address that problem in the future.”
That addressed a sore spot with Wilson: U.S. Attorney Chris Thyer’s assertion that the removal wasn’t improper and that “as long as I am United States Attorney, we will do it again if the need arises.”
Wilson noted in his order Friday, “After this assertion, the Government’s argument that the remand alone would ‘deter repetition of the conduct’ rang hollow.”
He sounded pleased at what he called a “concession [that] falls a tad shy of an unalloyed concession; but it does indicate that the Government understands that [the] procedure was inappropriate.”
Wilson also said the sanction had been imposed “as a deterrent,” but since the government has now indicated it won’t remove a case if similar circumstances arise, the deterrent is no longer necessary.
He said he also agreed with other arguments Whatley made for vacating the penalty, including that the underlying controversies are resolved, and the fact that the lingering issue creates a “possible stain on the professional reputations of the involved lawyers.”
Whatley wrote that if Wilson granted her motion, the Court of Appeals could remand the government’s appeal back to the district-court level to be disposed of. She noted that the government asked the higher court to put the appeal on hold while Wilson considered whether to grant the motion to vacate the sanction.
Whatley also wrote in her motion that “when civil discovery by a defendant in state court has the potential to compromise a pending federal prosecution, there are alternative means by which the United States can seek to protect the criminal proceeding ... that do not require removal of the underlying state court controversy” or cause other potential problems.
Arkansas, Pages 16 on 05/26/2012