INJUSTICE

It Takes Two to Conspire … But Don’t Tell the AUSAs Prosecuting Martin Shkreli's Lawyer

August 22, 2017   

Lawyers from Gibson, Dunn & Crutcher are mounting a full-throated defense of Evan Greebel, a former corporate partner at Katten Muchin Rosenman and Kaye Scholer who faces criminal charges in connection with his work for pharma bro Martin Shkreli.   

As well they should. Prosecutors are supposed to wear the white hat, and it s a mystery why the U.S. Attorney s Office for the Eastern District of New York is so set on continuing with its original case against Greebel.   

OK, yes, we all hate Shkreli, who infamously raised the price of the drug Daraprim from $13.50 to $750 per pill. But you can’t hang that on Greebel.   

The lawyer faces two criminal counts. The most serious is conspiring with Shkreli to commit wire fraud. On Aug. 4, a jury convicted Shrekli of three fraud counts, but acquitted him of the wire fraud conspiracy charge the one that’s still around Greebel’s neck (along with a convoluted lesser charge of conspiring to commit securities fraud).   

The feds lost the whale. Why keep chasing the minnow?   

The language used by Greebel’s defense team from Gibson Dunn Reed Brodsky, Winston Chan, Randy Mastro and Lisa Rubin in a motion to dismiss filed Friday evening is striking. Shocks the conscience, contrary to the interests of justice, frightening for every corporate lawyer in America, a Kafkaesque scenario stranger than fiction but all too real for Mr. Greebel.   

And that’s just on the first page.   

In an interview, Mastro, who co-chairs the firm's global litigation practice, said Greebel is an innocent man and never should have faced criminal charges. It is shocking that lawyers doing their jobs and counseling clients could end up in this predicament. There is something fundamentally wrong with this entire prosecution against a lawyer merely practicing law.   

Greebel was outside counsel to Retrophin, a biopharmaceutical company that Shkreli founded in 2011. The pair allegedly schemed to defraud the company by using its funds to pay off creditors of Shkreli’s failing hedge funds.   

But Mastro argues that the government’s case makes no sense anymore. The government alleged a conspiracy of two in its trial against Martin Shkreli, and told the jury that Martin Shkreli was the mastermind of the alleged conspiracy, he said. The government lost the conspiracy count. The jury rejected the government’s theory. How can you have any conspiracy case left to try? The answer is, you can’t.   

Firm lawyers tried to make that argument to Bridget Rohde, the acting U.S. Attorney for the Eastern District of New York, asking in an Aug. 11 letter (attached as an exhibit to the court filing) for a meeting to discuss the case.   

A well-regarded and nationally recognized attorney’s life and reputation are at stake, they wrote. It is contrary to the interests of justice, and the finding of the jury, for the United States Department of Justice to continue to pursue the conspiracy charge.   

Rohde’s curt reply on Aug. 16: I am declining the meeting you have requested; I understand that AUSAs Kasulis and Smith have advised you that the United States will not be dismissing the indictment against your client and that is the Office s position.   

Seriously? She wouldn’t even take the meeting?   

Because if the government is setting itself up to get clobbered at trial (and generally speaking, I wouldn’t bet against Mastro and Brodsky in the courtroom), you’d think they’d want to gauge that ahead of time. Taxpayers shouldn’t be asked to fund some quixotic quest for a conviction.   

The feds themselves in the Shkreli trial made it clear that Greebel was not the main culprit. Martin Shkreli was not relying on Evan Greebel. Evan Greebel wasn’t leading him around by the nose. Martin was the dominant person in that relationship, the government said during its rebuttal.   

The way the government initiated the case is troubling too. As Gibson Dunn points out in its motion, the U.S. Attorneys Manual mandates that Main Justice must approve serving a subpoena on a lawyer. So you’d think an indictment ought to get run by headquarters as well.   

Instead, the lawyers in the Eastern District of New York chose not to go to Washington, D.C., before indicting Mr. Greebel. Indeed, the government never even attempted to speak with Mr. Greebel, or a single person at Katten Muchin Rosenman LLP, before indicting and then arresting him, the Gibson Dunn team wrote.   

This case is about more than Mr. Greebel, they continued. It is about demonstrating that, before indicting an attorney for the legal work done on behalf of a corporate client, more should be required than interpreting emails.   

Scary stuff, indeed.   

Contact Jenna Greene at jgreene@alm.com. On Twitter @jgreenejenna.  

Story

Why does the prosecution keep changing its theory -- so far they have had 3 different ones:

• First he was personal counsel
• Then he was outside general counsel
• Then he was subservient counsel
• Is he going to be blind and ignorant counsel next?

Isn't the government supposed to investigate, formulate a theory and then prosecute?  How come this is going in reverse order?