It happened, most recently, in Connecticut in the Gen Re/AIG prosecution. The feds named former AIG CEO Hank Greenberg an unindicted co-conspirator. After the Gen Re trial, the judge issued a decision saying the government had presented “sufficient evidence” for a jury to conclude that the conspiracy started with a phone call from Greenberg. Then the SEC followed with a so-called Wells notice, indicating that Greenberg may face civil charges for his alleged role.

There, Greenberg was tied up with some of the evidence in the case. But suppose he hadn’t been. Suppose no evidence attaching Greenberg to the Gen Re/AIG fraud had surfaced at trial. Would it have been constitutional to name him as an unindicted co-conspirator — smearing his name but leaving him without a forum in which to defend himself?

That’s the issue that lawyers say is raised by a pre-trial brief submitted by the government in the so-called Holy Land case. In the case, prosecutors allege that that the Holy Land Foundation conspired with “a host” of individuals and entities, to support Hamas.

According to a memo, filed today in Texas district court on behalf of the Islamic Society of North America and the North American Islamic Trust — both of which were named as “unindicted co-conspirators and/or joint venturers” in an appendix that was attached to the brief — the government allegedly violated the Fifth Amendment in providing no explanation for its description of them as unindicted co-conspirators. The organizations, rep’d by ACLU lawyers, argue that, under Fifth Circuit law, “no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.”

The relief? They want a Fifth Amendment violation declared by the court, an order expunging their names from any public document filed that identifies them as unindicted co-conspirators and an order enjoining the government from identifying them as unindicted co-conspirators in another context other than that specifically permitted by the court. (MORE)


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