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Prosecutorial Misconduct in Zhenli Ye Gon Drug Case?

Zhenli Ye Gon is a Chinese-born, Mexican businessman who allegedly sold materials he knew would be used to manufacture methamphetamine in the United States.  The United States Departe of Justice filed a complaint against Ye Gon in June, 2007.  Ye Gon was arrested in July, 2007.  Yes, over two years ago.

Mexican prosecutors, for as long as Ye Gon has been in U.S. custody, have wanted Ye Gon. On June 2, 2008, Mexican authorities formally moved for extradition. The Department of Justice was not interested in handing Ye Gon over. That is, until June, 2009.

On June 22, 2009, federal prosecutors suddenly reversed course.  They moved to dismiss the case against Ye Gon, but asked to reserve the right to refile charges against Ye Gon. Why the abrupt change?

The prosecution's motion to dismiss did give any reasons for its policy shift.  Rather, the motion simply stated that it'd be swell for the U.S. to hand Ye Gon over to Mexican authorities.  That was probably true, though it was also question-begging.  DOJ begged the question: Why now?

The Docket Sheet reveals the answer. Take note of entry #166. On June 1, 2009, the defense moved to compel disclosure of Brady material:

06/01/2009166 MOTION to Compel Disclosure of Brady Evidence by ZHENLI YE GON. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, #3 Text of Proposed Order)(Retureta, Manuel) (Entered: 06/01/2009)

On June 3, 2009, U.S. District Court Judge Emmett Sullivan ordered federal prosecutors to turn over Brady Material:

06/03/2009168 ORDER granting 166 Motion to Compel Brady Evidence as to ZHENLI YE GON. Signed by Judge Emmet G. Sullivan on June 3, 2009. (AS) (Entered: 06/03/2009)

The Brady material revealed that a key prosecution witness had recanted his testimony several months ago. Under Brady v. Maryland, a witness recantation is clearly exculpatory.  Even without knowing anything about Brady, anyone would realize that a witness incantation is huge.  Right?

Why didn't the Department of Justice hand this material over to defense lawyers until Judge Sullivan forced them to?  Judge Sullivan asked, and the federal prosecutors refused to answer.

Instead, two years after Ye Gon's arrest and one year after Mexico made a formal extradition request, the Department of Justice has moved to dismiss the case.

Judge Sullivan is pushing back. He is asking questions. The answers should be very interesting, and highly revealing. This is definately a case you will want to watch.

(Hat tip: Mike Scarcella, of the Legal Times, has been reporting on the Ye Gon prosecution for several months.  Read his latest post for more details; read this previous news story, which discusses the possible prosecutorial misconduct.)

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