Virginia Lawyers Weekly VA Lawyers Weekly
A federal judge in Alexandria made a rare ruling last month, dismissing an indictment with prejudice against six defendants because of a due process violation.
The June 23 decision, from U.S. District Judge Leonie M. Brinkema, dismissed with prejudice indictments against defendant Rafi Anwari and five co-defendants. Brinkema found that a nine-year delay between activity and indictment violated the defendants’ due process right to a fair trial.
The decision is the first time a federal district court dismissed a case due to a violation of the Due Process Clause of the U.S. Constitution since 2013, and only the second time ever in the Eastern District of Virginia, according to one of the lawyers in the case, United States v. Anwari.
Indictment
Prosecutors in this case obtained an indictment in April 2021, which charged the defendants with varying charges of conspiracy to commit wire fraud and wire fraud.
The indictments stemmed from alleged conduct from 2011 and 2012. An April 22 press release from the U.S. Department of Justice announcing the indictments alleged that Anwari and his co-defendants “knowingly recruited linguists who lacked the minimum language proficiency in Dari or Pashto,” which are the primary languages in Afghanistan. The defendants, who were employed as linguist recruiters for an Arlington government contractor, were alleged to have engaged in a scheme to defraud the Army under a $700 million contract by knowingly providing unqualified interpreters to work with the Army in Afghanistan.
The release stated that if convicted, each defendant faced up to 20 years in federal prison. The case was investigated by the Defense Criminal Investigative Service, Special Inspector General for Afghanistan Reconstruction John F. Sopko and the U.S. Army Criminal Investigation Command.
“This indictment alleges serious crimes that threatened to put American troops at greater risk in a combat zone,” Sopko said in the April 22 release.
Hearing
The hearing on the motion to dismiss the indictments due to due process violations was held on June 23. Assistant U.S. Attorney Grace L. Hill and trial attorneys Michael McCarthy and Matthew Kahn prosecuted the case. The prosecutors for this case could not be immediately reached for comment.
Anwari was represented by Arlington attorney Libbey Van Pelt and New York attorney Sean M. Kelly. The other defendants were each represented by their own counsel.
“This was my second time representing a criminal defendant and Sean’s first time representing a criminal defendant,” Van Pelt said. “It really was like David and Goliath. It was Sean and I working around the clock on behalf of Rafi going up against all of the power and resources and imprimatur of the federal government.”
In making the dismissal motion, the defense claimed that the prosecution had violated the defendants’ due process right to a fair trial by waiting nine years after the alleged misconduct to bring charges. Van Pelt said the delay in bringing charges hindered the ability of the defense to prepare a proper defense, as necessary evidence was not preserved during that time.
“A decade later, phone records didn’t exist that we needed to establish Rafi’s innocence,” Van Pelt said. Van Pelt added that two “important witnesses” could not be brought to testify as well, as one had died in the intervening years and the other is currently missing in Afghanistan.
“That’s how we met that burden of actual prejudice – by piling up the lost evidence and witnesses that debilitated [Anwari’s] ability to defend himself at trial a decade later,” Van Pelt said.
Despite this, Kelly said the bar to meet the actual prejudice standard remained high.
“Frankly it was really discouraging to read cases from the late 1970s on, where witnesses were missing or evidence was missing and defendants still had trouble meeting this actual prejudice standard,” Kelly said.
Kelly continued, “But those were the tools that we had to work with. We had to show the court that the defense, nine years later, is impaired and the defense would look much different if it was brought in the ordinary course.”
According to reporting from the Associated Press, the prosecutors in the case asked for the case to proceed to trial by citing the Wartime Suspension of Limitations Act. The act extends the statute of limitations for crimes in war zones until five years after hostilities are terminated. Courts have previously ruled that because Congress passed specific Authorizations for the Use of Military Force, the act applies to the conflicts in Iraq and Afghanistan despite not being a formally declared war.
Ultimately, Brinkema sided with the defense, granting Anwari’s motion to dismiss indictment as a due process violation for pre-indictment delay. Additionally, Brinkema ordered the criminal case dismissed with prejudice as to all defendants, effectively ending the criminal proceedings against the six defendants.
Van Pelt said that she hopes the court’s decision “restores Anwari’s faith in our country and our legal system.”
She added, “What we do in the law matters. This is a case where two young lawyers took on the full force of the federal government, a case in which they produced over 600,000 documents. And we prevailed, against all odds,” Van Pelt said.
“It is one of the great honors of my career, and I know of Sean’s career, to have represented Rafi in this case. This case is life changing and defining as a person and a lawyer for both of us,” Van Pelt said.
