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Scott Bloch’s Misdemeanor Guilty Plea Withdrawn; Enemies Wail, Gnash Teeth!

Former Head of the United States Office of Special Counsel, Scott J. Bloch, is an attorney now in private practice in Washington, D.C.  He specializes in federal and state class action, USERRA litigation, representation of wounded and disabled veterans of Iraq and Afghanistan, as well as of employees of contractors like Blackwater and Dynecorp, who supplied contractors and private security.

In 2008, Scott Bloch was subjected to an FBI search of his home and office.  An intensive investigation by the United States Attorney’s Office followed.  In spite of hundred of thousands of dollars and literally dozens of persons assigned to investigate or litigate inside the US Attorney’s Office, by 2010 at the conclusion of a Grand Jury investigation, the US Attorney’s Office was reduced to seeking a misdemeanor plea from Mr. Bloch.  Bloch’s enemies had cried long and hard for him to be indicted on felony, perjury, and obstruction of justice charges.  These enemies pursued a concerted strategy through politics, the blogosphere, and with the incitement of certain private attorneys.  Many in the media simply reprinted angry attacked and distorted or false information which they were spoon-fed by Bloch’s enemies.  Bloch suffered intrusions into his personal life, the FBI seized for a time his eight year-old son’s computer, while the boy was working on a homework assignment.  Bloch’s religious faith as a Catholic was mocked, and he was repeatedly and harshly accused of being a homophobe who discriminated based on sexual orientation — demonstrably false character attacks which, unfortunately, became an accepted part of the belief system of many in the left-wing blogosphere, including people posting on TPM Muckraker, FiredogLake.com, and NPR.org.  With repetition, falsehoods become accepted as truths, like the repetitious publications on right-wing websites that Barack Obama was a Kenyan.

In 2011, Scott Bloch negotiated a plea to misdemeanor contempt of Congress, pursuant to 2 U.S.C. § 192.  According to his understanding and that of his attorneys and the government attorneys, this was a probation-eligible offense, which also was not considered a “moral turpitude” crime.  Essentially, the plea was a stipulation that he had been asked for certain information from Congress in hearings, related to his use of his laptop computer, which he had withheld in cintempt of the Congressional subpoena.  My brother had maintained all along that his office was an independent federal agency, and that privilege protected certain disclosures and information.  Based on the fact that shortstop Miguel Tejada had lied about steroid use when testifying in front of Congress, and was able to plead guilty to the same offense and received both a probation recommendation from the Probation Department, as well as a probation sentence, and because another federal official, Elliot Abrams, had plead guilty to the exact same offense and recevied a probation sentence, led everyone to belive that this was probation-eligible.

Judge Magistrate  Deborah Robinson held a hearing and took the plea.  Under Rule 11 of the Rules of Criminal Procedure, she was required to advise Scott of both the mandatory minimum as well as the mandatory maximum sentence.  She failed to advise him of the mandatory minimum, and after the hearing he still believed and understood, based on the government’s recommendation, that he would receive probation.  Instead, at a subsequent sentence hearing, she determined that the mandatory minimum was one month in jail, and she sentenced him to one month in jail along with a fine and some community service.  Scott filed a motion to withdraw his plea based on the Judge’s failure to advise him of the possibility that she would be bound a mandatory minimum 30-day incarceration.  The judge received briefing from both Scott’s attorneys and the government, who both argued that the statute should have been read as allowing for probation, and that if the judge was bound by the minimum, given that she had failed to advise him under the plea requirements of Rule 11, she should promptly allow him to withdraw the plea.  Magistrate Robinson issued a caustic opinion in which she refused to permit withdrawal of the plea, and in which she challenged the veracity of Scott Bloch in his declaration under penalty of perjury that he did not understand he was subject to a mandatory minimum 30-day incarceration as part of his plea, pursuant to 2 U.S.C. § 192.  Scott Bloch timely appealed in a memorandum opinion issued August 3, 2011.  Chief Judge Royce Lamberth reversed Magistrate Robinson.  He found that she had abused her discretion in refusing to allow Scott Bloch to withdraw his plea, and the support for Scott Bloch’s motion to withdraw, begun at the trial court and continued on appeal, persuaded Judge Lamberth along with the entire record showing Magistrate Robinson’s errors.

In the last several months leading up to this opinion, a score of blog entries, opinion pieces, and short articles in legal journals have followed this case.  Almost without exception, the coverage has referred to Bloch as a criminal, distorted the plea, and mocked Mr. Bloch’s appeal as a “do-over.” Many of these opinions have indulged in the kind of Schadenfreude usually reserved for arch criminals who are brought down like Bernie Madoff and Jeffrey Skilling.  It is expected that once this opinion is published, Bloch’s enemies will engage in wailing and gnashing of teeth.  After that, we hope their campaign of vilification runs out of steam.  Kudos to Scott Bloch’s outstanding legal team from Winston & Strawn, including Bill Sullivan and Ryan Sparacino, with an assist from Kansas counsel Bill Skepnek.  A link to the opinion is included right here.