Judge rejects bid to remove prosecutor from ex-Rep. Rivera's Venezuela case
Published in Political News
MIAMI — A federal judge Tuesday denied a bold bid by defense lawyers to remove a prosecutor from a former Miami-Dade congressman’s national security case, rejecting their claim that he has a conflict of interest that could affect the integrity of the trial starting next month.
U.S. District Judge Melissa Damian ruled that the defense lawyers for ex-U.S. Rep. David Rivera and political consultant Esther Nuhfer, who face trial on charges of being unregistered foreign agents for the Venezuelan government, “have not shown there is a basis to find” federal prosecutor Roger Cruz “has a personal interest” or “an actual conflict” in the outcome.
Damian sided with the prosecution’s argument that the defense allegations “are conclusory and speculative.”
“As stated on the record, Defendants have taken a ‘if there’s smoke, there’s fire’ approach to their claims regarding (Assistant U.S. Attorney) Cruz, but, after hearing from the parties, the Defendants fail to show that there is even smoke,” the judge found in her seven-page order.
Defense lawyers claimed that Cruz had a conflict because his wife’s past lobbying activities as a private lawyer have “intertwined” with influential Tallahassee-based lobbyist Ballard Partners, a few of whose partners are expected to testify at the trial of Rivera and Nuhfer.
One who won’t be compelled to testify is former Ballard lobbyist Susie Wiles, the White House chief of staff in the Trump Administration. A Miami magistrate granted the prosecution’s request to quash a defense subpoena for her testimony. Damian said she agreed with his decision.
In their recusal motion aimed at the prosecutor, the defense lawyers had to overcome a high bar to prevail. Damian would have to find that the prosecutor has a personal, financial, or prior professional interest through his wife that poses a threat to the trial’s integrity or the defendant’s right to a fair trial.
The defense motion — filed by Rivera’s lead lawyer Ed Shohat and Nuhfer’s lead attorney David O. Markus, both of whom have battled federal prosecutors for decades in corruption, fraud and drug-trafficking trials — alleged Cruz’s wife has business interests “directly connected” to Ballard Partners.
“AUSA Cruz’s wife is currently engaged in business activities that are directly connected to Ballard Partners, a national lobbying firm that is deeply enmeshed in this case,” the defense team said in its court motion to disqualify the prosecutor.
Defense lawyers cited Maria Lievano Cruz’s employment history, noting, for example, that between 2014 and 2017 she worked as vice president of corporate development for Florida East Coast Industries; Ballard Partners was the Florida lobbyist for the same real estate, transportation and holding company.
But Damian strongly disagreed, citing a declaration filed by Cruz’s wife saying she has “no financial or economic ties to Ballard Partners and its employees” or that she has “never been employed by Ballard Partners in any capacity.”
“This Court is satisfied that the Defendants have not shown any reason to doubt that their right to a fair trial free from improper prosecutorial motives has been compromised or that the integrity of these proceedings has been adversely affected based on (Assistant U.S. Attorney) Cruz’s or his wife’s interactions with potential witnesses, those affiliated with potential witnesses, or with the Defendants themselves.”
In their indictment, Rivera and Nuhfer are accused of lobbying as unregistered foreign agents for former Venezuelan President Nicolás Maduro’s regime in an effort to “normalize” relations with the U.S. government in 2017 and 2018. At the same time, Ballard Partners represented a wealthy Venezuelan businessman who collaborated with the defendants as he tried to expand his Caracas TV station in the United States.
In addition, the defense accused Cruz, the prosecutor, of reportedly making “a statement suggesting strong personal animus towards” Markus while expressing his “enthusiasm for the opportunity to convict a Markus client and put Markus in his place” — or “words to that effect.”
But Damian, the judge, also rejected that claim, saying that “representations” made by both Markus and Cruz at a court hearing last week convinced her it was not a basis for disqualifying the prosecutor.
“I thought Mr. Cruz and I had a good relationship,” Markus said at the hearing. “I was surprised to hear what he said.”
“I have zero animosity against David O. Markus,” said Cruz, a seasoned prosecutor who pointed out that Markus is one of the best lawyers in South Florida, if not the nation. “Did I say I wanted to be in a trial against David Markus? Absolutely.”
Damian, the judge, said at the hearing she could detect “some animosity” between the two sides because of the high stakes of the trial and the high caliber of lawyers.
“It may be there,” she said, “but I think you’re all sophisticated enough to let that go.”
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