On February 3, 1865, Congress redefined the geography of federal law enforcement in New York City. After considering measures extending copyright to “photographs and negatives” and constructing a telegraph line “from Missouri to the Pacific Ocean,” the Senate moved to House Bill 184, a piece of legislation that sought “to divide the southern District of New York.” The Southern District had come into being nearly a century earlier with the passage of the Judiciary Act of 1789. Congress was then located at 26 Wall Street, and New York City was the center of federal power in the United States—all eleven of them. The act created thirteen federal districts (and thirteen judgeships), three circuits, and six Supreme Court justices overseeing federal law for a nation of 3.9 million people. The writers gave the district courts narrow power to address, among other things, “crimes and offences . . . committed within their respective districts, or upon the high seas; where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding one hundred dollars, or a term of imprisonment not exceeding six months, is to be inflicted.”
By 1865, New York City’s population had surged from 33,000 at the beginning of the century to 810,000. Perhaps more important, New York harbor had become the preeminent port on the East Coast, more than tripling the annual exports of Boston, the closest competitor, by 1860. The harbor wasn’t only an engine of the city’s economy; it supplied a steady stream of civil litigants into federal court. At that time, the Southern District accounted for one-third of the nation’s caseload. More than anything else, the proposed creation of an Eastern District of New York was meant to cope with this overwhelming maritime litigation. The act called for Brooklyn, Queens, Staten Island, and Nassau and Suffolk Counties to be assigned to the Eastern District, while Manhattan, the Bronx, Westchester, and several upstate counties would remain in the Southern District, a geography that followed the contours of the East River and the Hudson.
The Senate debated the measure briefly. Much of the discussion centered on a question that would seem preposterous now: whether New York City had too few courts or too few lawyers. But one member of the New York bar worried about something else: that a city divided by two federal districts might harm the pursuit of justice itself by creating another court that would only encourage more litigants. A senator from Connecticut read a letter by an unidentified author. “I can imagine no public ground for such a measure, and mischiefs of the character in the administration of justice are sure to follow from this division of the port of New York into two judicial districts,” he wrote. “We shall have the strange spectacle of two Federal judicial establishments holding courts within three miles of each other.” It would be, in fact, just less than a mile and a half between the two courts, a distance more easily navigable with the opening of the Brooklyn Bridge five years later. The act cleared the Senate with a 26–7 vote, and that strange spectacle became a reality. What little controversy there was, was short-lived. There would be no shortage of lawyers or courts in New York or, for that matter, cases to appear before them.
The Southern District claimed its position as the preeminent federal district in the United States. It had a reputation for charting a path independent of Washington. For much of the next century, the Eastern District remained in its neighbor’s shadow, a local counterpart to the New York court with national and eventually international recognition. The districts imprinted themselves upon our popular culture, even if only as the unnamed setting for the criminal cases in true-to-life dramas. The federal case (and Supreme Court affirmation) of the conviction of the Russian spy Rudolf Abel—who was exchanged with the U-2 pilot Gary Powers in a prisoner swap—was dramatized in Bridge of Spies (Eastern District). The Godfather trilogy was inspired by the rise of the Luchese and Gambino crime families in both districts. Goodfellas dramatized Henry Hill’s account of the city’s largest cash heist at the Lufthansa cargo terminal (Eastern District), while Donnie Brasco portrayed the FBI infiltration of the Colombo crime family (Southern District). The Wolf of Wall Street retold Jordan Belfort’s rise and fall selling penny stocks, while American Hustle turned on the Abscam case (both Eastern District). Many of these stories planted the cornerstones of a twentieth-century American narrative tradition that would prove to be one of our most enduring cultural exports—the heroic journey of criminality and consequence under the American rule of law.
Prosecutors in the Eastern District rank in prestige among the nation’s best, along with the Eastern District of Virginia and the District of Columbia. But everyone sits in the shadow of the Southern District of New York, which firmly remains the most competitive and coveted U.S. Attorney’s Office in the nation. The reputation is deserved. Junior prosecutors in the Southern District are confident and meticulous and, typically, of distinction. Prosecutors in the Eastern District didn’t lack any of the academic or professional attainment of prosecutors in the Southern District. In general, the attorneys had gone to the same schools, clerked for the same judges, and practiced at the same firms before joining the government. What the Eastern District prosecutors did lack was the tradition of a cult of personality surrounding the head of their office. To be the U.S. Attorney in Brooklyn was to be a civil servant, albeit a high-ranking one; to be the U.S. Attorney in Manhattan was to be the most powerful law enforcement official in New York City—arguably the most powerful federal prosecutor in the country, undoubtedly the most autonomous.
The Eastern District includes a jurisdiction of eight million people. The Brooklyn U.S. Attorney’s Office’s criminal practice is divided into seven sections: Business and Securities Fraud, Public Integrity, Organized Crime and Gangs, International Narcotics and Money Laundering, National Security and Cybercrime, Civil Rights, and General Crimes. (The office has an additional Long Island section devoted to criminal prosecutions.) The names of these sections reflect the office’s enforcement priorities. U.S. Attorneys’ Offices elsewhere in the country like Eastern Oklahoma and North Dakota may divide their practice simply between civil and criminal, with no particular specialization on enforcement areas. In larger and more diverse districts, like the Southern District of Florida centered on Miami, but also encompassing the Everglades, the U.S. Attorney dedicates sections of prosecutors to Environmental Crimes alongside National Security and Narcotics.
The Eastern District of New York sits on global boundaries—not only along the Atlantic coast and at airports like John F. Kennedy and LaGuardia, but in the immigrant communities that make their homes within the jurisdiction. Many immigrant communities throughout the district—concentrated in Queens, Brooklyn, and areas of Long Island—provided a nexus for international drug-trafficking organizations, ethnic gangs like the El Salvadoran MS-13 on Long Island, or organized crime groups like the remnants of La Cosa Nostra and the Vor, elements of the Russian mob. Terrorist groups like al-Qaeda and the Islamic State found the district a potent recruiting ground among disaffected Americans and recent arrivals, while Eastern District jurisdiction over cyber criminals operating far from U.S. borders could easily be established once suspects stepped off a flight at JFK.
The office’s proximity to Wall Street and Long Island’s boiler rooms also drove the white-collar practice, while the naturally replenishing supply of state and city officials and police officers on the take kept the Public Integrity Section busy with cases.
How an office organizes itself can also signal the vision of the U.S. Attorney. In 2009, the Southern District’s U.S. Attorney, Preet Bharara, announced the creation of the Terrorism and International Narcotics unit, which sought to address the “increasing nexus between narco-trafficking and terrorism.” In 2012, the Eastern District underwent its own reorganization under then U.S. Attorney Loretta Lynch. She reordered the Violent Crime and Terrorism Sections with the new National Security and Cybercrime Section, a move she said borrowed from the office’s approach on international organized crime groups to focus on state-sponsored and affiliated criminal groups.
With the 2014 nomination of Loretta Lynch to attorney general, the Eastern District surged to national prominence. Lynch was a widely respected candidate; she had developed a reputation as honest and hardworking. She attracted only a fraction of the attention that Bharara did while each served as U.S. Attorney, but her experience as a young federal prosecutor was defined by significantly higher-profile cases. Lynch distinguished herself with trials against the Green Dragons, a Queens-based Chinese gang, and Justin Volpe, an NYPD officer charged with sexually assaulting a man with a broom handle in a Brooklyn station house. As U.S. Attorney, she secured a $1.9 billion settlement from HSBC that drew criticism, both from the public and from Republicans in Congress, because executives at the bank escaped prosecution. Congress delayed Lynch’s confirmation—putting her at the center of a showdown between the White House and the Senate on immigration—but, after waiting 165 days, held a vote with several Republicans crossing party lines to confirm her. As attorney general, Lynch remained connected to the Eastern District. Her debut occurred not at Justice Department headquarters but instead at the packed law library of the Eastern District U.S. Attorney’s Office, where she and the FBI director, James Comey, announced the indictments of FIFA officials in a global corruption investigation. It was a celebratory scene that held little inkling of how the two officials’ careers would collide in the coming year.
The geography had historically bred competition for cases ranging from organized crime to white-collar offenses to terrorism. When TWA Flight 800 crashed off Long Island in 1996—in international waters, but closest to the Eastern District—the Southern District under U.S. Attorney Mary Jo White pushed to lead the criminal investigation. “The joke at the time was that she claimed jurisdiction before the plane hit the water,” said one former prosecutor, who no sooner than recounting that asked that his name be removed from the quotation. In early 2016, the arrest of the Sinaloa cartel leader Joaquín Guzmán Loera, a.k.a. El Chapo, thrust the jurisdictional competition into national headlines, before the case landed in then attorney general Loretta Lynch’s former home, the Eastern District.
Jurisdictional rivalries come with the territory in New York City’s law enforcement community and became an essential feature of a senior federal prosecutor’s job.
“If you were a section chief, you had to be good at fighting turf wars. There were a lot of them between the Southern and Eastern District,” said Gordon Mehler, who served as the Eastern District’s chief of special prosecutions in the 1990s. When it came to white-collar crime during that time, “the Southern District would have a bigger footprint and was stealing the Eastern District’s lunch money with some degree of regularity.” But by the time of the 2008 financial crisis, the Eastern District stepped forward to press the Department of Justice’s first criminal prosecution of executives trading in mortgage-backed securities, while the Southern District demurred from pursuing cases tied to the economic collapse.
Competition among law enforcement agencies didn’t necessarily create market efficiencies. Stephen Fineman, a professor of organizational behavior, conducted fieldwork within several law enforcement agencies in New York in the early 1990s. He called jurisdictional disputes a “paradigmatic example” of “functional rationality and substantive irrationality.” Fineman wrote:
In New York City, such disputes often make justice a pawn in heated rivalries or more simply the function of geography or time of day. New York City has five different district-attorney jurisdictions and two federal-prosecutor jurisdictions . . . Every federal law enforcement agency, from the Federal Bureau of Investigation and the United States Marshals Service to the Immigration and Naturalization Services [sic], has major operations in the city, which has long been the national centre of organized crime, the principal east coast port-of-entry for narcotics, and a prototypical site for youth-gang violence . . . [O]ne of the paradoxes of law enforcement is that police of all sort need crime, the more vicious, the better, the more innocent the victim, the better, in order to demonstrate their prowess to their peers and make a plausible public claim of the necessities of their services. The rivalry between and within all law enforcement bureaucracies for “good” cases is fierce, often producing extremely frustrating outcomes.
Lynch came into national office at a moment when federal prosecutors have never been more powerful. While the U.S. Attorney puts a public face to the job of a federal prosecutor, the manual labor of bringing indictments and trying cases falls to Assistant U.S. Attorneys. These AUSAs, also called line assistants, can rise through the supervisory ranks to become section chiefs, overseeing teams of more junior prosecutors, but even the youngest assistant in a federal district wields significant power. With that title—and with approval of their supervisors—they are given the authority to charge and accept plea deals for federal crimes on behalf of the government. The crimes include those committed within the United States, as well as many where the defendants never set foot on U.S. soil.
This power is particularly prominent in our adversarial system of justice, tilting the process strongly in favor of the government—a statement that most prosecutors would reject, but judges, defendants, and their attorneys would accept. This wasn’t always the case. Federal sentencing guidelines introduced in the mid-1980s significantly limited a federal judge’s discretion in tailoring punishments to defendants. Even after a 2005 Supreme Court ruling made the guidelines no longer mandatory, the imbalance remained a feature of the system. In late 2018, Congress passed the First Step Act, a piece of broad criminal justice reform legislation, which further loosened some of the sentencing requirements placed on judges.
All incentives, within this guideline sentencing system, point toward cutting a deal on criminal charges—in all but the narrowest circumstances where the risk of a trial can be justified. Under this system, defendants who opt for a plea receive credit for “acceptance of responsibility,” which triggers less severe sentences than those received by individuals convicted at trial. A defendant’s primary leverage remains his willingness to take a case to trial, to publicly test the government’s evidence and to force the U.S. Attorney’s Office to direct resources to a case. But this is—in effect—a gamble. Defendants risk a greater sentence if they lose; this is the so-called trial tax. The prosecutor’s power to charge and negotiate pleas, in particular, is the power to dictate the sentence. By selecting charges with specific guideline sentence ranges, the government sets the high and low end of the costs defendants face when they go before the judge to be sentenced. Defendants who take a plea receive credit for their cooperation and, in most cases, a significantly reduced sentence. The criminal indictment or charging information serves as an invitation to this negotiation, rather than to the beginning of a trial. Prosecutors argue that the plea negotiation system creates efficiency in a system overwhelmed by cases. Critics argue that this creates perverse incentives for defendants to plead guilty, even when innocent.
Copyright © 2019 by Johnny Dwyer. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.