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By Rachel Swan
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By Albert Samaha
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By Erin Sherbert
Kevin Ryan must have felt like a man invited to his own stoning. A hive of Department of Justice auditors had spent a week interviewing the U.S. Attorney's staff about his command of the office. Such on-site appraisals, performed every three years by review teams dispatched from Washington, D.C., climax with evaluators airing employee criticisms of the boss.
Ryan and his division supervisors joined the D.C. crew in a large conference room in the U.S. Attorney's Office, nestled on the 11th floor of the Federal Building at 450 Golden Gate Ave. A video feed transmitted the meeting to the agency's branch offices in Oakland and San Jose. Sitting in silence, Ryan listened while, one by one, auditors pelted him with a litany of staff complaints.
Attorneys in the office disparaged him as isolated, inflexible, and disengaged from the agency's work. They blamed his managerial style for poisoning morale and neutering the authority of supervisors. Several accused him of granting too much control over personnel and legal decisions to his first assistant, creating an autocracy by proxy.
Those who attended the meeting or watched the simulcast suspected that, as he absorbed the harsh remarks, fury roiled beneath Ryan's rigid exterior. When the auditors finished their presentation, he said little before stalking from the room. "I'm sure it was unpleasant for him," one federal prosecutor says. "But he shouldn't have been surprised."
The review, conducted in March, proved a dramatic drop-off from Ryan's first evaluation in 2003, a year after President Bush appointed him to the post. Back then, he enjoyed robust staff support, and the Justice Department rated the Northern District of California as arguably the strongest of its U.S. Attorney offices. Over the next three years, owing to a mass emigration of veteran prosecutors who chafed under Ryan's rule, the goodwill waned, along with the office's status. Seven months past the latest audit, the staff's mood remains as dour as its opinions of the man in charge.
"There's still a sense of malaise," another attorney in the office says, "and he's still bunkered."
Indeed, in interviews with two dozen current and former prosecutors, defense lawyers, and federal judges, an image emerges of Ryan as either oblivious to or dismissive of the unrest around him. More than 50 attorneys have quit on his watch, depriving the office of some of its longest-serving criminal and civil litigators. Legal observers regard the turnover as the primary reason for the office's caseload falling during the Ryan era, a trend evinced by a steep decline in white-collar prosecutions.
By contrast, the number of tactical blunders committed by prosecutors appears on the rise. A recent spate of gaffes, including one that ignited an ongoing federal probe, has magnified a perception of Ryan as out of touch. Beyond the interest he shows in BALCO and a handful of other marquee cases, his critics contend, the post of U.S. Attorney stands vacant.
"I'm smart enough to know what I don't know," Ryan told the San Jose Mercury News a month before he assumed office. With his reappointment looming, some wonder if he knows why the almost universal praise he enjoyed four years ago has curdled.
The audit marked only the latest and loudest geyser of vitriol to spew within Ryan's office. Before leaving for private practice last year, Prosecutor John Hemann e-mailed his colleagues a copy of an open letter addressed to Ryan. He described a staff beset by low spirits and high attrition, and a U.S. Attorney inclined to ignore their concerns.
"There are problems in the office now that have not existed in kind or magnitude since I got here in 1995 ... ," wrote Hemann, who served on the federal Enron task force that prosecuted the company's executives. "It is no solution to deny these problems exist. ... People in the office lawyers and staff are unhappy and frustrated. People outside the office are critical and, increasingly, derisive."
In January, two months before the on-site appraisal, another longtime prosecutor, George Bevan, broached similar themes in a letter he sent to Justice Department officials handling the audit. According to excerpts published in The Recorder, a Bay Area legal journal, Bevan wrote of an office "in crisis" and faulted "gross mismanagement" for the attorney exodus.
Bevan, a criminal prosecutor in the agency's Oakland branch, declined to comment to SF Weekly. Hemann, a partner at the San Francisco office of Morgan Lewis, did not respond to interview requests.
But their claims jibe with those offered by other attorneys in the office and ex-prosecutors who worked under Ryan. They depict him as aloof, quick to anger, and intolerant of debate, a manager who considers it a breach of fidelity to question his decisions. "It doesn't matter how much you know about the law or how much experience you have," a prosecutor says. "To him, what matters is loyalty; asking questions is disloyal."
Alluding to that "climate of suspicion," as one attorney called it, prosecutors who spoke to SF Weekly requested anonymity, fearing reprisals; former prosecutors also were loath to talk for attribution, citing professional and personal ties to the office. Yet the sheer number of lawyers voicing discontent suggests an agency in upheaval.
The friction began intensifying in fall 2003, burning through the good cheer that insulated Ryan during his first year. In July 2002, he inherited the office from interim U.S. Attorney David Shapiro, who filled in for a year after Robert Mueller departed to head the FBI.
Mueller bequeathed a U.S. Attorney's Office whose reputation he dusted off and buffed to a high sheen. His predecessor, Michael Yamaguchi, resigned in 1998, forced out by Justice Department officials amid the office's sinking caseload and fractured morale. Armed with a reformer's mandate, Mueller jettisoned a dozen supervisors in his first six months and ordered his attorneys to start filing more cases.
The ex-Marine's blunt manner earned him the label of dictator. Yet during his three-year tenure, Mueller also nurtured a collective pride among his attorneys, gaining respect for his work ethic and legal acumen. He visited courtrooms to observe them in action, and whether they won or lost a verdict, he seldom forgot to praise their effort. He played the role of staff advocate in court, appearing with his lawyers on occasion to press the prosecution's argument if a judge doubted its merit.
Revitalized by Mueller, the office filed 1,512 cases in 2000, almost double its total two years earlier, when Yamaguchi stepped down. Prosecutors hunted big game, indicting members of the Nuestra Familia gang by exploiting racketeering laws; pursuing a massive corporate-fraud case against drug giant McKesson HBOC; and charging former Ukrainian Prime Minister Pavlo Lazarenko in a money-laundering scam.
The Northern District office prosecutes criminal and civil offenses across a region stretching from Monterey to the California-Oregon border, and the U.S. Attorney ranks as the area's top law enforcement official. As the office flourished under Mueller, the FBI and other federal agencies if given a choice of court venues based on a crime's geographic range started referring more cases to the Northern District. He rode that swell of success to his post with the FBI in 2001.
"He had the pulse of the entire office," one veteran prosecutor says. "But he trusted his division chiefs and he gave people the freedom to make decisions."
Shapiro more or less sustained the momentum between Mueller's exit and Ryan's entrance. Following a six-year stint as a Municipal and Superior Court judge in San Francisco, Ryan arrived as an esteemed trial jurist and a devoted Republican: Visitors to his court chambers at the Hall of Justice could expect to hear the radio tuned to Rush Limbaugh's show.
A San Francisco native and former Alameda County prosecutor, Ryan, 48, won the U.S. Attorney job despite lacking federal court experience. Most legal experts disregarded that hole in his résumé, including Joseph Russoniello, the U.S. Attorney before Yamaguchi, who surmounted the same deficiency.
Russoniello chaired the search committee that recommended Ryan to White House officials. In a 2002 newspaper interview, he downplayed the need for the incoming U.S. Attorney to possess federal bona fides. "What is important is the capacity to manage a lot of people who do have a deep understanding of the rules," Russoniello said.
On that count, Ryan's critics brand him both inept and indolent. In the words of one former prosecutor, "While he's been there, the soul of the office has left."
After Ryan's relatively calm first year, the honeymoon ended in October 2003. That month, Ryan named Eumi Choi as his first assistant, a position with oversight of the criminal division and the narcotics task force, as well as the Oakland and San Jose branches.
A federal prosecutor for six years in Washington, D.C., before she moved to San Francisco in 2000, Choi already supervised the civil, tax, and administrative divisions as the executive assistant U.S. Attorney. The dual managerial roles and Ryan's blessing gave her, in effect, carte blanche over the office.
Current and former prosecutors assert that, from the moment of her promotion, Choi clashed with supervisors and attorneys alike. Sources allege that she usurped the authority of division chiefs, forcing them to clear charging decisions with her and dictating case strategy. Section meetings, once free-flowing affairs in which managers and prosecutors swapped ideas, turned funereal, the staff loath to contradict Choi's edicts.
"It became all about following directions," a prosecutor says.
Likewise, Choi wielded a heavy hand in personnel matters: She remains under investigation as part of a federal probe into the firing of an administrative officer last summer. Attorneys joked that the only aspect of office life unscathed by her influence were the farewell parties held for outgoing colleagues.
Last year, over the span of four months, the staff hosted goodbye soirees for Jonathan Howden, Ross Nadel, and Ben Burch, who together boasted some 60 years of experience working in the office. At the time of their respective departures, Howden headed the narcotics task force, Nadel ran the criminal division, and Burch oversaw the Oakland branch. Howden and Nadel accepted early retirement packages to join private firms, while Burch moved to the Superior Court bench in Contra Costa County.
Yet several of their onetime co-workers insist that, to varying degrees, the three men sought a career change out of frustration with their loss of autonomy. "Those guys were the lifer type," says a former federal prosecutor about the trio, none of whom agreed to talk with SF Weekly. "They had stuck around through all these other [U.S. Attorneys]. That office was where they wanted to be."
Former colleagues characterize the loss of Burch, who preceded Nadel as criminal division chief, as the stiffest blow to the staff. Revered as a walking index of the federal code, he knew the intricacies of the law as acutely as he understood the tendencies of Northern District judges. "Ben was the guy who could help you on the little issues, the judgment calls where he could give you answers based on his own experience," an ex-prosecutor says. "There's nobody left like that."
A total of 101 prosecutors make up the Northern District's three-branch office. The exodus of more than 50 attorneys during Ryan's reign peaked last year, when 17 walked away. Ten have packed up this year, and rumors persist that two others may follow by month's end.
Current prosecutors and their departed cohorts link the turnover to Choi's greater influence and Ryan's diminished visibility. In his first year, Ryan mingled with the staff, urging attorneys to stop by his office anytime and soliciting their opinions on whom to promote. But after elevating Choi to first assistant, his detractors contend, he withdrew, ceding the day-to-day grind of running the office to her. He closed his open door, requiring attorneys who wanted to see him to arrange an appointment through his secretary, and meeting only if Choi also had time to attend.
"She's the gatekeeper," another ex-prosecutor says of Choi. "People have to go through or past her to talk to him."
Ryan's time as a state judge and county prosecutor provided scant training for supervising a big office rife with the outsized egos common to prosecutors. Shy by nature, according to those who have worked with him, he appears to rely on Choi as a buffer perhaps to his detriment. "It just makes him seem more remote," one prosecutor says. "Being U.S. Attorney is not an impossibly difficult job. Slap people on the back, thank them for their work, and then take all the credit. But just talking to people seems beyond him."
Mueller, the former U.S. Attorney, strolled the hallways around 5 p.m. each day to perform "bed checks," chatting with his lawyers about their cases. The visits, though annoying to some, served to motivate the staff to match his zeal. If Ryan made similar rounds, another prosecutor says, he would find rows of empty offices.
"People don't hang around till 8:30 at night anymore they're out by 5. Why would you stick around? Morale sucks."
Attorneys conveyed that attitude during the Justice Department appraisal in March. Precisely what Ryan or Choi thought of the review is harder to discern neither agreed to an interview with SF Weekly. Discussing the office's status quo fell to spokesman Luke Macaulay, who pointed out that the auditors' presentation involved preliminary findings; a final written report will detail "positive accomplishments."
An average of 11 prosecutors quit in the two years before Ryan took office, compared to 13 a year since his arrival. Macaulay quotes the statistics to counter claims of a soaring attrition rate under Ryan, ascribing the departures to the office's retirement buyout offer and the lure of bigger salaries in private practice. He provides more numbers in disputing the perception of a staff bereft of veteran attorneys. Since 2002, the office has hired 24 prosecutors from other U.S. Attorney districts and Justice Department agencies.
In assessing the turnover at the office of his putative adversary, Barry Portman, the federal Public Defender for the Northern District of California, downplays its impact. "If you have people who are there too long, things can get stale," says Portman, who declined to talk about Ryan. "New blood can be healthy."
Likewise, says Little, the Hastings law professor, grousing about staff departures occurs under every U.S. Attorney. He recalls joining Russoniello's office in 1989 to replace a prosecutor who left after four years. Skeptics said the office would miss the man's experience the same refrain that trailed Little out the door in 1994.
"History is remarkably short-sighted," he says. "People used to say Joe Russoniello wasn't doing a good job. Then after he was gone, they started calling those the golden days."
But the number of lawyers who have bolted from Ryan's staff may matter less than the accrued institutional knowledge they took with them. By conservative estimate, the office has lost prosecutors with a total of more than 500 years of experience in the Northern District. Aside from Burch, Nadel, and Howland, longtime prosecutors who departed include Steven Gruel, former chief of the major crimes unit, and Patrick Robbins, who ran the securities fraud section. The two logged a combined quarter-century in the office.
Both lawyers, now in private practice, declined to comment. Even so, they belong to the growing diaspora of ex-prosecutors who, while working under Robert Mueller's direction, turned the Northern District into one of the nation's most vaunted U.S. Attorney's offices. Such acclaim has fallen mute.
In his role as federal lawman, Ryan shows a state prosecutor's relish for bagging thugs. During his 11 years with the Alameda County District Attorney's Office, he prosecuted dozens of murder and gang-related cases. Over the last year, his office, applying racketeering and trigger-lock laws, indicted two dozen members of the Down Below and Page Street gangs. The aggressive push has occurred at a time when the San Francisco District Attorney's Office has moved slowly in prosecuting gang-related homicides.
Between 2004 and last year, Ryan's gang crackdown boosted the number of organized-crime cases from eight to 61; weapons-related prosecutions jumped from 89 to 110. The rising figures elicit hosannas from San Francisco police. "Kevin Ryan has given us great support," says Capt. Kevin Cashman, head of the SFPD's investigations bureau. "He understands what we're up against."
Ryan has tagged along with DEA agents on a pair of drug stings the last two years. Javier Pena, special agent in charge of the DEA's San Francisco office, describes him "as a man who wants to be involved, someone who's always open to ideas."
The gang and drug busts, though lesser known than BALCO, land on the list of high-profile cases handled by Ryan's office. Macaulay, his spokesman, ticks off others: convictions of 10 people on charges related to trafficking of prostitutes from South Korea to San Francisco brothels; Operation Copycat, a nationwide music, movie, and software piracy case that so far has seen 32 defendants convicted; and the ongoing prosecution of Reliant Energy executives accused of price-fixing during the state energy crisis in 2000.
But beneath the headlines lies the small print that reveals a plunge in the office's overall caseload. In 2001, with Mueller and then Shapiro in charge, prosecutors filed 1,291 cases, according to a Syracuse University database that tracks Justice Department statistics. The next year, Ryan's first, the number tumbled to 1,013, and from 2003 to 2005, the office averaged 947 prosecutions a year, a drop of nearly 27 percent in four years.
Ryan's critics rap him hardest for the drop in white-collar cases. Prosecutors filed 93 last year, down from 214 in 2000, the same year Mueller formed the office's high-tech crimes unit, the first of its kind in the country. The decrease in cases, while mirroring a national trend that bespeaks the feds' greater emphasis on antiterrorism efforts, troubles legal experts, given that Ryan's office patrols Silicon Valley.
"Just because the number of cases has gone down doesn't mean human venality has changed," says Peter Keane, dean emeritus of the Golden Gate University School of Law. "You would think there would be a steady stream of dot-com fat cats heading into court."
The ongoing stock options back-dating probe may portend at least a trickle, with executives of Brocade indicted in August and other companies under federal scrutiny. Yet Keane, a former San Francisco public defender, argues that Ryan has abdicated the U.S. Attorney's traditional role of prosecuting large-scale tax, fraud, and political corruption cases. "A district attorney will go after gang cases and gun cases," he says. "But it's really only the federal prosecutor who can do the big white-collar cases."
Prosecutors in Ryan's office contend that the constant staff churn slows pursuit of complex white-collar crimes, as new attorneys must spend weeks, sometimes months, bushwhacking through documents to learn a case. The ongoing federal probe of state Senator Don Perata's business dealings has lagged since last year, when Burch, the Oakland branch chief handling the case, quit the office. Last week's departure of Haywood Gilliam, the lead attorney on the Reliant Energy case, could further bog down that long-running prosecution.
Budget cuts have trimmed Ryan's staff by a dozen prosecutors since 2004. The shortage of bodies, coupled with veteran attorneys burning time to break in recent arrivals, hampers the office's ability to cultivate fresh cases, an ex-prosecutor says. "You should be able to do both violent crimes and white-collar. But there's a lot of new people playing catch-up, so you don't see as many [white-collar] cases being brought."
Or as much rapport between the U.S. Attorney's Office and law enforcement agencies seeking to refer cases to it. A prosecutor recounts that, in the Mueller era, federal agents would hang out in the hallways, pestering attorneys for a 10-minute meeting to sell a case. "It's a lot quieter these days," the lawyer says.
Similarly, Kathleen Bisaccia, former head of the SEC's San Francisco branch, noticed that as longtime attorneys left the Northern District, their replacements returned fewer calls on potential cases. "When you lose that relationship with someone who's been there for years, it's going to slow things down."
Yet the number of cases filed barely scrapes at the top soil of the office's deeper work, argues Mark Krotoski, the acting criminal division chief. He offers the example of BALCO. The probe, while counting as only two indictments, prodded Congress to strengthen steroids laws and Major League Baseball to conduct its own investigation.
"Numbers just tell part of the story," Krotoski says. "You have to look at the complexity of the case."
Portman, the Federal Public Defender, credits that measured approach to Ryan. "The office under him seems more concerned with large cases, as opposed to rounding up a bunch of illegal immigrants."
At the same time, considering the thousands of hours Ryan's office has pumped into BALCO, the small courtroom returns five convictions raise questions about its worth. Judge Susan Illston grazed that topic last October during the sentencing of BALCO founder Victor Conte Jr., who received a term of four months after the U.S. Attorney's Office nixed 40 of 42 charges against him and two co-defendants. In the future, Illston said, prosecutors ought to weigh potential charges "at the beginning and not the end of the case."
Attorneys who have worked with Ryan believe he should heed the words. More than one portrayed him as "consumed" by the BALCO-inspired media craze, holding countless meetings with his prosecutors on the case. As the scandal lurches into its fourth year, one lawyer in his office asks, "Shouldn't he pay that much attention to every case?"
Illston's tut-tutting marked yet another small disgrace for Ryan's prosecutors in front of a federal judge. Perhaps the most embarrassing episode occurred last year before U.S. District Judge Charles Breyer during the trial of an alleged cocaine dealer.
Much of the prosecution's case relied on a one-time drug trafficker turned DEA informant, whom the FBI had fired ("Bait and Snitch," SF Weekly, Nov. 23, 2005). On cross-examination by a defense lawyer, a DEA agent first insisted he had no idea why the FBI released the snitch, then later admitted he knew.
Realizing the agent might have committed perjury, Breyer pointedly asked whether prosecutors wanted to drop the charges. He went so far as to summon Choi, Ryan's first assistant, from her office on the 11th floor of the federal building to his courtroom on the 19th. She opted to press on with the case.
It proved a ruinous choice. By leaving the agent on the stand after his apparent contradiction, prosecutors virtually forced him to invoke his rights against self-incrimination. Once he stepped down, Breyer threw out his testimony, crippling the case. After a feeble effort to continue, prosecutors finally dismissed the charges later that day.
The fiasco prompted Breyer to order a federal probe into possible misconduct by the snitch, the agent, and the DEA. He spared prosecutors, praising them for their ethics, noting that they provided key details on the informant to the defense. Yet it's fair to ask whether the two relatively inexperienced attorneys who bungled the case adequately prepped the agent for his testimony, or whether Choi should have spiked the tainted case when Breyer asked.
Current and former prosecutors assert the two prosecutors needed the kind of veteran oversight that has seeped out of the office the last three years. Meanwhile, defense lawyers portray Choi's mulish refusal to drop the case as symptomatic of Ryan's legal ethos.
"It's part of a win-at-all-costs mentality," says Ian Loveseth, the defense attorney in the case. "There's been a loss of rational perspective."
Critics fault that tunnel vision for a series of toe-stubbings by Ryan's prosecutors. In April, Breyer ordered a retrial in a death threat case after prosecutors neglected to disclose details to the defense about an expert's potential testimony. During a theft trial last year, Judge Jeffrey White excoriated prosecutors for failing to cough up information on the defendant to his lawyer; they soon dropped the case.
But those flare-ups were cool breezes compared to Judge William Alsup's eruption this summer over the steady refusal of prosecutors to release to defense lawyers the names of witnesses and informants in an ongoing murder case. Prosecutors maintain that divulging the identities invites retaliation on the sources from allies of the gang members facing homicide charges; defense attorneys argue they need the names to investigate the case.
During a pretrial hearing, Alsup, after months of futile prodding of prosecutors, blew up at them. He swatted away the retaliation rationale as "bogus" and charged that prosecutors sought only a "tactical advantage." They have appealed a sanction imposed by him that could exclude the unnamed sources from testifying.
"Prosecutors are going to fight tooth and nail to give as little as they can and not turn over anything until the very last minute," says Richard Mazer, who represents a defendant in the case. "They're going to stonewall as much as they can."
If that tactic represents a change in the Northern District, Macaulay, Ryan's spokesman, counters that federal prosecutors across the country employ the strategy. Without concealing their identities, he adds, the sources could end up dead.
Legal observers theorize that the tensions between Ryan's office and the federal bench would abate if he forged stronger ties with the judges. Instead, attorneys in the office claim, he eschews reaching out to judges, and his absence at an annual judicial conference last year caused a stir. "That's like saying 'fuck you' to the judges," one prosecutor says.
Former federal prosecutor Little, who talks to Ryan on occasion, doubts the U.S. Attorney will change his approach. Still, despite the heavy criticism lobbed at Ryan, Little places him on par with former U.S. Attorney Joseph Russoniello, and well ahead of Michael Yamaguchi. As for comparisons to another U.S. Attorney, Little says, "Bob Mueller was an exceptional federal prosecutor. To say Kevin Ryan is not Bob Mueller is not a bad thing."
In 2002, Ryan applied for a vacancy on the Northern District bench. As the story goes, White House officials urged him to instead take the job of U.S. Attorney, assuring him that after gaining a bit of federal seasoning, he would don a judge's robe.
Whether Ryan still carries that career ambition is unknown. Yet considering his cold relationship with the region's federal judges and the speculation in legal circles that Justice Department officials would prefer that he step down, the optimism of four years ago seems a distant glimmer.
A month before he took office, Ryan told the Mercury News, " ... I think I have an advantage because I'm not coming from within the system. To use an overused phrase, I'll be able to think outside the box."
He's had a more difficult time stepping out of his bunker.
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