The Chad Elie Plea Hearing Transcript, Excerpt #1
As part of the civil malpractice lawsuit brought by convicted online-poker payment processor against his own attorney, gaming lawyer A. Jeff Ifrah, Ifrah and his own legal counsel subsequently filed a motion to dismiss last month which included an appendix containing several relevant legal documents.
The motion to dismiss that Ifrah filed a month ago included this assertion:
… Of equal import, in his plea allocution, Plaintiff [Elie] specifically stated he knew his conduct was illegal while he was committing the crime for which he was pleading guilty and he had not, in fact, relied upon the advice of any attorney in choosing to engage in such conduct.
The allegations in this lawsuit are directly contradicted by this clear and unambiguous denial that Plaintiff’s criminal conduct was based upon the advice of counsel….
Among the motion’s appendices is the complete transcript for Elie’s March, 2012 plea hearing. Elie was physically represented at this hearing by lawyer Barry H. Berke of the firm Kramer Levin Naptalis & Frankel, before Judge Lewis A. Kaplan. Andrew D. Goldstein represented the DOJ’s prosecutorial interests, with Arlo Devlin-Brown and Preet Bharara himself appearing. Also present were FBI investigators Royal Pollitt and Jonathan Ball.
Here are a few outtakes. After the judge established Elie’s mental competency, this exchange occurred:
The Court: … Mr. Elie, have you had an adequate opportunity to discuss this case with your attorney?
The Defendant: I have, sir.
The Court: Are you satisfied with your attorney and his representation of you?
The Defendant: Yes, sir.
It’s fair to note that this could be interpreted as Elie being satisfied with Barry Burke specifically, not necessarily with Ifrah, who represented Elie in other matters. But this more detailed exchange can be found beginning on p. 21:
The Court: In a super abundance of caution, it occurs to me to say to you, Mr. Elie, do you understand that by entering this plea you are surrendering any claim that you did not act with criminal intent because you relied on the advice of counsel? Do you understand that?
The Defendant: Could I have one second.
The Court: Yes
Mr. Berke [Elie’s lawyer]: Your Honor, just to clarify as necessary, obviously the conspiracy requires that Mr. Elie be guilty of one of the two objects and Mr. Elie has, we think, allocuted to the bank fraud and agrees that there is no object, no issue with regard to the reliance on counsel as to the bank fraud counts which are obviously separate and that are involved in the case.
Mr. Elie agrees that in pleading guilty to a conspiracy charge with two objects, one to commit bank fraud, one to conspire to run an illegal gambling business, that he will no longer have a reliance-on-counsel defense in any way with regard to the second object of the conspiracy.
The Court: I don’t know if I want to take a plea under those circumstances. There is no advice-of-counsel defense. This man is admitting that he is guilty of the felony of conspiracy.
Mr. Berke: Absolutely, your Honor.
The Court: In order to do that, he has to satisfy me that he is admitting that he had the requisite criminal intent, and reliance on counsel in some circumstances is not consistent with that event. I want a flat-out statement from him to be perfectly frank that he is here admitting that he acted with criminal intent in committing this conspiracy.
Mr. Berke: Absolutely, your Honor. I didn’t mean my statements in any way to mean anything other than that. What I was referring to, let me explain and then Mr. Elie will be able to do that. Mr. Elie is obviously admitting to bank fraud and the conspiracy that charges bank fraud as well as a separate object, operating an illegal gambling business. The only point I was make something [sic], there was, he certainly understood that he was involved in transacting in a business for poker. He is not relying on any reliance-on-counsel defense in connection with this case or otherwise, and he is prepared to say that, your Honor.
The Court: Let’s hear it from you, Mr. Elie.
The Defendant: Your Honor, in 2009, I worked with others to establish an account at Fifth Third —
Mr. Berke: One moment.
The Court: We are not there yet, Mr. Elie.
The Defendant: Yes, your Honor. I am not relying on advice of counsel and I am pleading guilty to the conspiracy.
The Court: You are acknowledging that in committing this conspiracy, you acted with criminal intent. Is that right?
The Defendant: Yes, sir.
The Court: OK. Satisfactory to the government?
Mr. Goldstein: That is, your honor.
And on from there. It seems quite clear from this exchange that Elie and his attorney in this matter, Burke, had previously discussed a possible reliance-on-counsel claim in regards to Elie participating in the poker processing, and that the judge wasn’t going to allow it here.
If one goes back to the initial claim Elie filed against Ifrah, this exchange appears to part it down the middle. On the one hand, Elie could argue that Ifrah wasn’t the “counsel” that Elie referred to here, since Burke was serving as Elie’s lawyer here instead, but on the other hand, there is also an argument to be made that by admitting to the willful intent in the poker processing conspiracy, Elie has rendered subsequent defense claims moot.
There’s also the matter of the other Elie claims regarding Ifrah, in that Ifrah alleged allowed a deadline to lapse in another civil case regarding Elie, and that Ifrah himself served as a secret government witness in the Black Friday investigation.
Ifrah’s heated 31-page motion to dismiss makes no reference whatsoever to that specific allegation, which was grafted piecemeal into Elie’s initial complaint and may have been an attempt to curry public sympathy. Whether or not Ifrah actually did serve as a secret government witness remains only an allegation; he has to date not commented publicly on that matter.
In a follow-up post, we’ll look at some of the specific allegations and Elie’s admissions during the same plea hearing that offered the exchanges excerpted above.