United States District Court, W.D. Missouri, Western Division
REPORT AND RECOMMENDATION
T. Maughmer United States Magistrate Judge.
before the Court is the Defendant's Motion for Remedy
Following Evidentiary Hearing [Doc. 67] filed on October 19,
2018, by defendant Barrett Prelogar (“Prelogar”).
At issue in the motion is the remedy, if any, which should be
afforded to Prelogar based on an ex parte interview
conducted by government personnel with an individual who
previously provided legal services to Prelogar. On October 2,
2018, the undersigned held an evidentiary hearing on the
circumstances surrounding and substance of the referenced
interview. Prelogar was present and represented by his
counsel, Justin Gelfand and Sanford Boxerman. The government
was represented by Assistant United States Attorney Paul
Becker and David Zisserson, a trial attorney with the
Department of Justice's Tax Division. At the hearing, two
witnesses were called: James Wirken and Special Agent Alex
Churchman with the Internal Revenue Service. Additionally,
the following exhibits were offered and admitted into
Thornhill letter to Ketchmark
Thornhill letter to Shartar
Thornhill email to Churchman (10/10/2015)
Thornhill email to Churchman (10/16/2015)
basis of all the evidence adduced at the evidentiary hearing
and following due consideration of the parties' extensive
briefing, the undersigned submits the following:
FINDINGS OF FACT
Churchman is a Special Agent with the Criminal Investigation
Division of the Internal Revenue Service. Tr. at 32.
Special Agent Churchman was assigned the lead case agent in a
criminal tax investigation of Prelogar. Tr. at 32.
nearly 45 years, James Wirken (“Wirken”) was a
practicing attorney in Kansas City. Missouri. Tr. at 5, 22.
Beginning in the early 1990s, Wirken provided legal services
to Prelogar. Tr. at 5.
Special Agent Churchman was aware that Wirken had previously
represented Prelogar and Special Agent Churchman wanted to
question Wirken after Wirken's name came up during the
criminal investigation as being involved in a number of
Prelogar's transactions. Tr. at 34-35.
Special Agent Churchman wanted to evaluate whether Prelogar
had a possible reliance-on-counsel defense. Tr. at 35.
March 21, 2017, Wirken met with Special Agent Churchman and
Paul Becker, an Assistant United States Attorney in the
Criminal Division in the United States Attorney's Office
for the Western District of Missouri. Tr. at 6, 7, 32, 33.
March 21, 2017, Wirken was still on federal supervised
release. Tr. at 6.
March 21, 2017, Prelogar had not yet been indicted. Tr. at
During the pre-indictment criminal investigation of Prelogar,
he was being represented by a Kansas City attorney, Mark
Thornhill. 52 11. In September of 2014, Thornhill sent a
letter to the case agent who preceded Special Agent Churchman
that described certain financial arrangements involving
Prelogar and noted that the particular actions were taken
“after meeting with Wirken.” Tr. at 54-55;
October of 2015, Thornhill sent an email to Special Agent
Churchman providing copies of a deposition that Wirken had
given in a prior case, stating “Mr. Prelogar wants you
to have the transcripts, as they demonstrate his actions have
all been lawful.” Tr. at 52-53; Gov't #2.
weeks prior to the interview with Wirken, on March 8, 2017,
Special Agent Churchman met with Thornhill regarding the
ongoing criminal investigation of Prelogar. Tr. at 57.
the meeting, Thornhill brought up the issue that
Prelogar's actions were undertaken upon Prelogar's
reliance on legal counsel. Tr. at 60.
Following the meeting, Thornhill sent a letter summarizing
the meeting, noting that the case against Prelogar involved
“issues of accounting and advice of counsel.” Tr.
at 58-59; Gov't #3.
interview was arranged through communications between
Wirken's criminal defense attorney and AUSA Becker. Tr.
at 6-7, 33.
Wirken was “absolutely” willing to speak with the
government about Prelogar's criminal case as long as he
was assured that he was not a target. Tr. at 6-7.
Wirken attended the interview at the U.S. Attorney's
office “voluntarily.” Tr. at 6-7, 33.
interview lasted approximately one to two hours. Tr. at 7,
interview was not recorded, neither audio nor video. Tr. at
During the interview, “at least a half dozen times,
” Wirken was asked about conversations he had with
Prelogar. Tr. at 8.
response to such questions, Wirken said that he could not
tell Special Agent Churchman and AUSA Becker “anything
about the conversations from Mr. Prelogar to [Wirken] or from
[Wirken] back to Mr. Prelogar because it was attorney-client
privileged.” Tr. at 8-9, 23-24.
response to such questions, Wirken may have revealed the
substance of some communications that he had with ...