David Struckman's Conviction Upheld by Appeals Judges, Who Also Slam the Government for Its Conduct

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It's been just over a year since David Struckman's lawyers told a panel of three Federal appeals judges that his conviction deserved to be overturned. Struckman, the subject of this week's cover story, was convicted in U.S. District Court in 2007 for his role in the rise of Global Prosperity, a notorious tax avoidance scheme. At his appeal hearing, Struckman's lawyers alleged gross misconduct on the part of the federal agents who handled his case. The U.S. Court of Appeals agreed, then affirmed his conviction anyway. But at least one of the three isn't ready to let the government off the hook.

Judge Marsha Berzon writes in the court's opinion that U.S. District Court Judge Robert Takasugi ruled correctly when he prevented evidence derived from an anonymous government witness known as "Ted" from being introduced at Struckman's trial.

Struckman's lawyers had argued that by never disclosing Ted's true identity, the government had violated his right to due process. According to the court, investigators were indeed guilty of misconduct. But despite their "disturbing" actions, the panel found that Struckman failed to prove how that evidence could have aided his defense, or how Takasugi's remedy wasn't sufficient enough to ensure that he received a fair trial.

But Berzon isn't yet ready to let the case rest. In her concurring opinion, the clearly frustrated judge lays into the federal agents who handled Struckman's case for what she calls their "affront to the judiciary." Like Judge Takasugi before her, Berzon writes that the Feds essentially lied about the real source of the information the government attributed to "Ted." Three years after the trial, the source has yet to be disclosed, despite court order. For that "continued defiance," Berzon writes that she would remand the case back to trial to force the government's hand.

"Only when this information is available can the district court, and we, accurately determine whether a further remedy, in addition to the suppression order, is appropriate," she opines. According to Berzon, it would also give the trial judge the standing to discipline all the parties responsible should the government continue to resist.

The fact that his lawyers were able to win Berzon over, and that he owes over $2 million or so in restitution, might give Struckman reason enough to appeal the decision, this time to a full panel of appeals judges. According to court documents, the earliest he could apply to do so is July 13. Struckman is scheduled to be released from federal prison in August.

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