Scorn for Prosecutors on ‘Misguided’ Record Search

     (CN) — Federal prosecutors were too quick to shrug off records demands by a man who pleaded guilty to securities fraud, a federal judge ruled.
     The case in Washington, D.C., stems from a supposed 2008 judgment by Chief U.S. District Judge Laurie Smith Camp that supposedly required the court’s permission before “judicial proceedings of any kind[,] civil or criminal,” could be brought against a man named Bryan Behrens.
     After serving prison time for securities fraud, Behrens filed a demand with federal prosecutors in Nebraska under the Freedom of Information Act, demanding to know whether they ever actually got the court’s leave before indicting him.
     He filed suit to compel production of the order, but the prosecutors said their search did not produce any records responsive to Behrens’ demand.
     Though the office moved for summary judgment, U.S. District Judge Amit Mehta shot it down Friday.
     “Maybe such an order exists; maybe it doesn’t,” Mehta wrote. “But [the U.S. Attorney’s Office] did not search all likely locations for such a record. Most notably, it did not search the criminal case file involving the charges for which [Behrens] was convicted. Defendant’s assumption that an order from Judge Smith Camp might be located only in the civil case file of the SEC Case — which it does not possess — is misguided. If the order plaintiff seeks actually exists, it is reasonable to believe that it could be found among the criminal records maintained by USAO-Nebraska pertaining to the case against him. After all, if there is an order authorizing prosecution, it stands to reason that a copy of it would exist within the prosecution’s case file. By failing to search that case file, which it admittedly possesses, Defendant failed to carry out its obligation to search those records ‘that are likely to turn up the information requested.'”
     Mehta directed the office to search its criminal records for the order in question.
     The Nebraska U.S. Attorney’s Office has 30 days to either renew its motion for summary judgment or file a status report detailing its search efforts.
     In addition to a 2008 complaint by the Securities and Exchange Commission, accusing him operated a $3.5 million Ponzi scheme while working at Sunset Financial Services, Behrens faced several lawsuits from former clients in connection to the scheme over the years.
     The Eighth Circuit ruled against him in an insurance dispute in 2011.