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In re Seykora

Supreme Court of Montana

September 18, 2018

IN THE MATTER OF JAMES E. SEYKORA, An Attorney at Law, Respondent.

         ODC File No. 17-107

          Mark D. Parker PARKER, HEITZ & COSGROVE, PLLC Attorneys for Respondent


         County of Yellowstone

         I, James E. Seykora, being first duly sworn upon my oath depose and state as follows:

         1. My consent is freely and voluntarily tendered, and I am not being subjected to coercion or duress, and I am fully aware of the implications of submitting to discipline by consent.

         2. I am aware that there has been a formal Complaint filed against me, dated April 25, 2018, the nature of which is an accusation that I improperly and intentionally withheld exculpatory evidence from an accused in a federal court matter and, further, that I intentionally misled a court as to the nature of a defendant's prior cooperation with the Government.

         3. I agree that all material facts alleged in ¶¶ 1-3 of the "Complaint" are true in that I was admitted to the practice of law in 1972, and took the required oath; the Montana Supreme Court has adopted Rules of Professional Conduct which at all times governed my behavior (with the possible exception of matters contained within a document entitled the Thornburgh Memorandum) and that from May of 1984 to July of 2012, 1 was an assistant U.S. Attorney in Billings, Montana.

         4. I agree that, on October 3, 2017, the United States Department of Justice, Office of Professional Responsibility (OPR) referred a matter to the Office of Disciplinary Counsel (ODC) wherein the OPR concluded that I had engaged in violations of professional misconduct which included Rule 3.3(a)(i) and Rule 8.4(d), MRPC. I self-reported this finding to ODC.

         5. I agree that Rule 11(A), RLDE, requires a complaint to be filed within six (6) years. I also believe that the claims against me in large part as expressed in the Complaint are barred by the ten-year statute of limitations found in Rule 11, for which there is no toll.

         6. I agree that, central to the charge of my misconduct, are allegations imposed by Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), that the government must provide a defendant with exculpatory material and material that would impeach prosecution witnesses.

         7. In 2006, 1 did prosecute Heather Schutz and Lashawn Johnson in U.S. v. Schutz, Cause No. CR-06-34-BLG-SPW, and US. v. Johnson, Cause No. Cr-06-79-BLG-DLC.

         8. The prosecutions were the result of a long-term federal investigation into the trafficking of illegal narcotics in the Billings, Montana, area. I agree that I at one time knew that following Schutz' arrest, this witness was debriefed many times by many agents, and she provided information of marginal relevance to the investigation and prosecution of Johnson. Schutz was indicted for conspiracy to possess narcotics with intent to sell and possession of a firearm in relation to a drug trafficking offense. Schutz pled guilty March 29, 2006. Her plea agreement, which was provided to the defense, provided she might be rewarded for her assistance and subsequent prosecution of other defendants. On August 14, 2006, 1 did file a motion to reduce sentence pursuant to 5K1.1 on the basis, in part, that Schutz had provided assistance. I now have been told that the government cannot find any grand jury testimony of Schutz and so I believe that, if this matter proceeded to a formal proceeding, I cannot successfully defend myself against the accusation that the government possesses no grand jury testimony where Schutz testified.

         9. On June 26, 2006, the grand jury did indict Johnson on charges of narcotics conspiracy, possession of narcotics with intent to sell, and possession of a firearm in furtherance of a drug trafficking crime. Johnson went to trial on November 27, 2006. Two weeks prior to trial, the government, through me, provided Giglio impeachment material to Johnson. I provided Johnson with the sealed Schutz plea agreement that contained language that the government would be willing to reduce her sentence for cooperation. The record reflects that I apparently did not, and I am willing to admit that I did not produce to Johnson the sealed 5K1 motion to reduce sentence. I am prepared to concede this point, if this matter went to trial.

         10. I did, in August of 2006, improperly represent to the trial court in the 5K1.1 motion and at Schutz' sentencing hearing, that Schutz had testified before the grand jury. I did not ask Schutz questions as she testified before the Johnson trial jury about the 5K1.1 motion or the ...

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