IN THE MATTER OF JAMES E. SEYKORA, An Attorney at Law, Respondent.
Michael W. Cotter, Chief Disciplinary Counsel
COMPLAINT RULES 3.8(D), 8.4(D), MRPC
Office of Disciplinary Counsel for the State of Montana
("ODC") hereby charges James E. Seykora with
professional misconduct as follows:
James E. Seykora, hereinafter referred to as Respondent, was
admitted to the practice of law in the State of Montana in
1972 at which time he took the oath required for admission,
wherein he agreed to abide by the Rules of Professional
Conduct, the Disciplinary Rules adopted by the Supreme Court,
and the highest standards of honesty, justice and morality,
including, but not limited to, those outlined in parts 3 and
4 of Chapter 61, Title 37, Montana Code Annotated.
Montana Supreme Court has approved and adopted the Montana
Rules of Professional Conduct ("MRPC"), governing
the ethical conduct of attorneys licensed to practice in the
State of Montana, which Rules were in effect at all times
mentioned in this Complaint.
May 1984, Respondent joined the U.S. Department of Justice
("DOJ") as an Assistant United States Attorney
("AUSA") posted at the United States Attorney's
Office ("USAO"), Billings, Montana. Throughout his
tenure as an AUSA, Respondent focused on Organized Crime and
Drug Enforcement Task Force cases. He retired from federal
service in July, 2012.
October 3, 2017, the United States Department of Justice,
Office of Professional Responsibility ("OPR")
referred Respondent to ODC as a result of its investigation
into Respondent's alleged misconduct that occurred while
he was an AUSA. In its Report of Investigation, it found that
Respondent had engaged in professional misconduct and had
violated the Montana Rules of Professional Conduct, including
Rules 3.3(a)(1) and Rule 8.4(d), as well as the parallel
rules contained in the United States Attorney's Manual.
11(A), RLDE, requires a formal Complaint to be filed within
six years from the time the alleged misconduct is discovered.
Pursuant to Rule 11(C)(3), RLDE, "[t]he six-year statute
of limitations is tolled while: (3) Civil, criminal, or
administrative investigations or proceedings based on the
same acts or circumstances as the violation are pending with
any governmental agency, court, or tribunal." OPR's
investigation into Respondent's alleged misconduct was
initiated in December, 2014 and was concluded in October,
2017, when OPR referred the matter to ODC. As a result,
pursuant to RLDE 11(C)(3), the six-year statute of
limitations was tolled during the time OPR was conducting its
investigation into the conduct of the Respondent, and this
complaint is timely filed with the Montana Supreme Court.
Central to the Respondent's misconduct was his disregard
for the constitutional due process obligations imposed by
Brady v. Maryland, 373 U.S. 83, 87 (1963), and
Giglio v. United States, 405 U.S. 150, 154 (1972).
Brady imposes on the government the obligation to
provide the defendant with exculpatory material, i.e.,
evidence that would exonerate the accused; and
Giglio imposes on the government the obligation to
provide defendants with impeachment material, i.e.
information that would impeach the credibility of a witness.
2006, Respondent prosecuted Heather Schutz
("Schutz") and Lashawn Johnson
("Johnson"): United States v. Schutz, USDC
(MT), Cause No. CR-06-34-SPW, and United States v.
Johnson, USDC (MT), Cause No. CR-06-79-BLG-DLC. The
prosecutions were the result of a long term federal
investigation into the trafficking of illegal narcotics in
the Billings, Montana area.
Following Schutz's arrest, she was debriefed a number of
times by federal agents, during which she provided
information beneficial to the government in its investigation
and eventual prosecution of Johnson. Schutz was named the
sole defendant in a two count Information: Count 1, narcotics
conspiracy, and Count 2, possession of firearm in relation to
a drug trafficking offense. Schutz pleaded guilty on March
29, 2006. The Plea Agreement provided for the possibility
that she might be rewarded for her assistance to the
government-it was filed under seal. On August 14, 2006,
Respondent lodged a Motion to Reduce Sentence (5K1.1) on the
basis that Schutz had provided ". . . truthful,
complete, and reliable grand jury testimony resulting in an
indictment." In fact, she had not testified before the
Grand Jury, and there was no mention that she had provided
truthful debriefing. She was rewarded for her cooperation,
and the Federal District Court reduced her guideline sentence
of 188 to 235 months for the drug conspiracy charge by
roughly 30% ~ to 140 months. She was also sentenced to 60
months on the gun charge to run consecutively, for a total of
200 months. The 5K1.1 Motion was filed under seal. Rule 35,
F. R. Crim. P., provides a second opportunity for a further
June 26, 2006, a Grand Jury indicted Johnson on charges of
narcotics conspiracy, substantive narcotics, and possession
of a firearm in furtherance of a drug trafficking crime.
Johnson went to trial on November 27, 2011. Two weeks prior
to trial, Respondent provided Giglio impeachment
material to Johnson. In order to provide sealed documents to
Johnson, a motion seeking leave to do so was filed with the
Court. He produced the sealed Schutz Plea Agreement; however,
he did not seek leave to produce the sealed Schutz 5K1.1
Motion to Reduce Sentence. As such, the sealed Schutz 5K1.1
Motion to Reduce Sentence was not produced or disclosed to
Johnson, nor were all of the FBI 302 Reports of Schutz's
debriefing, as well as other documents. Respondent also
advised defense counsel that there was no Grand Jury
testimony because the only witness who did testify was a
federal agent, and he would not be called as a witness at
trial. Johnson was convicted and sentenced to an aggregate
sentence of 420 months imprisonment.
Three months earlier (August, 2006), Respondent represented
to the trial court in the 5K1.1 Motion and at Schutz's
sentencing hearing that Schutz testified before the grand
jury. That was not a true statement. However, Respondent told
Johnson's lawyer on the first day of trial that the
government had no grand jury transcripts to disclose. At
trial, Schutz testified. Respondent asked her a number of
questions that were narrowly focused about her understanding
of the plea agreement that allowed for a post-trial or future
reduction of her sentence under Rule 35. He avoided asking
any questions relating to the 5K1.1 Motion and sentencing
benefit that she received three months earlier. Johnson's
lawyer asked no questions regarding the 5K1.1 Motion or
reduced sentence on cross examination.
2010, Schutz filed a Motion for Enforcement of Plea
Agreement, arguing that Respondent acted in bad faith by
refusing to file a Rule 35 Motion to further reduce
Schutz's sentence. Throughout the post-conviction
proceedings in the Schutz matter, Respondent
perpetuated the false statement that Schutz had testified
before the Grand Jury, making no effort to correct the
misrepresentation. In fact, as late as April 20, 2011,
Respondent did file a Rule 35 Motion in Schutz's case.
The motion reminded the Federal District Court that the
government's original 2006 sentence recommendation had
been premised in part on Schutz's Grand Jury testimony.
He further acknowledged that Schutz "did testify