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In re Seykora

Supreme Court of Montana

April 25, 2018

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

         The Office of Disciplinary Counsel for the State of Montana ("ODC") hereby charges James E. Seykora with professional misconduct as follows:

         General Allegations

         1. 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.

         2. The 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.

         3. In 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.

         4. On 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.

         5. Rule 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.

         6. 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.

         7. In 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.

         8. 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 sentence reduction.

         9. On 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.

         10. 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.

         11. In 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 ...


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