Heroin Conviction Vacated in Only Case Preet Bharara Went to Court for as U.S. Attorney

When Preet Bharara was Manhattan’s U.S. attorney, he prosecuted precisely one case in court himself. His team won the case at the time, but a district court judge just vacated one of the convictions.

Bharara, who subpoenaed Reason.com for the identity of some of our blog commenters and then slapped us with a gag order to keep us from commenting on the subpoena, was fired along with 45 other Obama-era federal prosecutors earlier this year.

The current case involves John Pauling, who had been charged with intent to distribute 100 grams or more of heroin. The district court judge, J. Paul Oetken, ruled that the prosecutors used misleading charts (which showed Pauling selling more heroin than they proved at trial), that they did not disclose those charts to the defense beforehand, and that they did not offer adequate proof of the charge, relying instead on speculation.

“The Government offered insufficient evidence at trial to sustain the jury’s finding with respect to drug quantity. Instead, the Government relies upon a series of inferences rooted in speculation rather than evidence,” Oetken wrote. “The Government made a commitment that it did not keep. Moreover, the Court is convinced that the use of the charts made a difference in the jury’s verdict.”

Oetken reduced the conviction to a lesser charge involving an “unspecified” amount of heroin. The original charge carried a five-year mandatory minimum sentence; the reduced charge has none.

It’s not the first time one of Bharara’s cases has been compromised by prosecutorial misconduct—just the first for which he went to court himself. (It is a tradition of the U.S. attorney’s office in the Southern District of New York for the U.S. attorney to second-chair at least one case during his or her term.) In 2015 Bharara’s office suffered a string of failures. Two insider trading convictions were dismissed, and because the dismissal was not overturned, Bharara eventually had to drop seven similar cases. An appeals court ruled the tips the traders were being prosecuted over were not unlawful because there wasn’t an expectation of a personal benefit in return.

That same year an appeals court overturned a conviction Bharara’s office secured against a man accused of plotting cannibalism. In its ruling, the court said it was hesitant to “give the government the power to punish us for our thoughts and not our actions.” Fantasizing about a crime, the court said, was not a crime.

During that series of setbacks, Bennett Gershman, a law professor at Pace University and the author of Prosecutorial Misconduct, suggested that Bharara’s habit of self-promotion was backfiring.

“Is he educating people? Maybe. Is he inflaming people? Maybe. Is he doing what prosecutors should do? No,” Gershman told the Associated Press. “Because he’s put himself out there with such gusto—grandstanding—the cases he’s lost are going to take on added prominence.”

Bharara continues to be a self-promoter. He claims that phone calls he received from President Donald Trump made him feel “uncomfortable,” and thus has been lionized by many liberals for the perception that he stood up to Trump. It’s not the first time Democrats have glossed over prosecutorial misconduct for partisan ends. Sen. Kamala Harris, a rising Democratic star who some want to run for president in 2020, was a vigorous defender of prosecutorial misconduct as California’s attorney general.