Miami federal judge accuses 2 prosecutors of spying on defense, orders new Miami trial
In a blistering ruling, a federal judge has accused two federal prosecutors in Miami of lying to him about “invading” a defense team’s strategic meetings by using a cooperating defendant as a spy before a sweepstakes fraud trial.
As a result, the judge threw out the convictions and sentences of three other defendants and ordered a new trial.
U.S. District Judge Darrin Gayles unsealed his order this week, saying that the prosecutors in the U.S. Attorney’s Office obtained privileged information from the cooperating witness in violation of the defendants’ right to a fair trial and misled the judge about doing so before he allowed them to stay on as prosecutors in the case and go to trial in 2017.
“The new evidence brought before the Court reveals that the prosecution team knowingly made misrepresentations to the Court to evade dismissal of the Indictment and/or disqualification [as prosecutors in the case] ,” Gayles wrote in his 20-page order.
Gayles noted that the prosecutors “insisted” that they “did not know” that the cooperating defendant “repeatedly met with the defense team after signing [his] plea agreement and actively solicited information at these meetings.” The prosecutors “also insisted” that they “did not obtain any privileged information” from the cooperating defendant before trial, he wrote.
“The new evidence,” Gayles found — citing testimony in an internal investigation by the Justice Department — “establishes that those representations were untrue. ... This misconduct by the prosecution team compromised the integrity of this whole proceeding.”
In response, the U.S. Attorney’s Office said it is deciding whether to appeal the judge’s decision, retry the three defendants or dismiss the seven-year-old sweepstakes case. “The government is considering its options.,” Marlene Rodriguez, an assistant U.S. attorney and spokesperson for the office, told the Miami Herald.
In 2017, three South Florida men were found guilty of a conspiracy to commit mail fraud by swindling millions of dollars from thousands of elderly people in an old-fashioned sweepstakes scheme. Although acquitted of other charges, they were convicted of tricking the sweepstakes victims into thinking they had to pay a $50 fee to redeem a big prize and were supposed to go to prison in early 2018.
But that’s been on hold since the trial, when the three defendants’ lawyers asked the judge to reconsider their convictions while accusing the prosecutors of using the cooperating defendant as a mole who spied on them.
Last year, in a preliminary ruling, Gayles found misconduct by the two federal prosecutors: H. Ron Davidson, who is still with the U.S. Attorney’s Office, and Elijah Levitt, who left the office in 2018 to become a Miami-Dade County judge but resigned this year. Because of the initial allegations of misconduct by the defense team, Gayles deferred sending the three defendants to prison as he evaluated other evidence, including an internal Justice Department probe.
Since their trial, Matthew Pisoni, 49, of Fort Lauderdale, Marcus Pradel, 45, of Boca Raton, and Victor Ramirez, 42, of Aventura, have been free on bond while facing their prison sentences. Pisoni and Ramirez were sentenced to seven years in prison, and Pradel to 6 1/2 years. The fourth defendant, John Leon, 54, of Wilton Manors, who cooperated as a witness for the prosecution and cut a plea deal, completed his 3 1/2-year sentence.
Gayles did not issue his final order for a new trial until last month. Because it contained sensitive information about the Justice Department’s Office of Professional Responsibility investigation into the two prosecutors, the order was filed under seal. Miami attorneys who handled the defendants’ appeal argued that the judge’s order should be unsealed with certain redactions, and Gayles agreed to make it public this week.
“During the holiday season, we are giving thanks to Judge Gayles, who has given us all hope that our criminal justice system can treat everyone fairly and require that prosecutors play by the same rules as everyone else,” attorneys Mona and David Oscar Markus said in a statement provided to the Miami Herald. They represented Pisoni on his appeal.
Miami lawyers Marc Seitles and Ashley Litwin represented Pradel, and Miami attorney Richard Klugh represented Ramirez.
Before trial, Gayles said he was reluctant to dismiss the indictment or disqualify the original prosecution team, largely because he was unaware of the depth of the prosecution’s alleged betrayal.
After a hearing in 2016, Gayles let the $25 million sweepstakes fraud case go to trial — although without testimony from the government’s tainted cooperating witness, Leon.
After the defense appealed to the judge to reconsider, citing allegations of misconduct, Davidson and Levitt admitted in documents later made public that they had obtained handwritten notes from Leon during the period when he was secretly invading the defense camp. Leon had given the notes along with a timeline to an IRS agent during a debriefing in February 2016 when he began his cooperation.
An investigation by the Justice Department’s Office of Professional Responsibility revealed that Davidson and Levitt misled the trial judge more than first thought, according to Gayles’ order.
“Although the prosecution team feigned ignorance about the number of times Leon attended those [defense] meetings and whether he provided the Government with confidential information, the OPR investigation reveals that Leon attended numerous privileged meetings with his co-defendants and their lawyers and that he did so with the Government’s explicit authorization,” Gayles wrote in his order.
“Throughout the course of the meetings, Leon obtained privileged information, some of which was communicated to, and relied on by, the Government.”
Contrary to previous assertions that Leon gave them no evidence, Davidson and Levitt admitted in documents later made public that they had obtained handwritten notes from Leon.
Gayles said that the two federal prosecutors not only betrayed him but also everyone else involved in the case.
“The unfortunate truth is that the prosecution team lied to the Court about Leon’s cooperation in their attempt to avoid dismissal of the Indictment and their disqualification,” Gayles wrote. “And this deception was not limited to the Court. AUSA Davidson also misled defense counsel and Government investigators.”
According to court documents, Leon had initially teamed up with the other suspects in a Joint Defense Agreement, an agreement where all four defendants extended the attorney-client relationship among them to share privileged information. But the other three defendants didn’t learn that Leon had broken ranks with them until his plea deal was publicly disclosed in April 2016.
Until then, he had been a mole for the prosecution, the three defendants claim. With the post-trial disclosures, the two prosecutors, Davidson and Levitt, were removed from the case in 2018.
In a federal court filing, Davidson argued there was nothing sinister about the prosecution’s relationship with Leon. “His cooperation was kept covert because Leon was cooperating with the government against a non-charged defendant,” Davidson wrote. “Moreover, the government specifically instructed Leon not to share privileged information.”
But the appellate lawyers argued that the prosecution team violated the constitutional rights of the three defendants, who have a right to privacy in preparing their case and a right to a fair trial.
The judge agreed, admitting that the prosecutors’ betrayal even caused him to make a critical mistake before trial.
“The Court wrongly concluded that the prosecution team was merely naïve for trusting Leon,” Gayles wrote in his order. “But, based on the new evidence, it is clear that the Government misled the Court and the defense regarding its role in invading the defense camp and its receipt of privileged information.”
In ordering a new trial, however, Gayles stopped short of dismissing the sweepstakes case outright. That might affect the decision by the U.S. Attorney’s Office on whether to retry the three defendants.
This story was originally published December 8, 2022 at 3:52 PM.
