The Districts: Stories of American Justice From the Federal Courts

By Johnny Dwyer

Alfred A. Knopf, New York, 368 pages, $28.95

Commenting on the subject of "power," U.S. Attorney General (and later Supreme Court justice) Robert H. Jackson reminded federal prosecutors in a famous 1940 speech that the "prosecutor has more control over life, liberty, and reputation than any other person in America." Examining this power, journalist Johnny Dwyer has published a perceptive new book about significant organized crime, narcotics, white-collar crime, counterterrorism, and public corruption cases recently prosecuted in the federal courts in Brooklyn and Manhattan. In so doing, Dwyer highlights important criminal justice controversies that are relevant for the entire nation and "offers a window into our politics and society."

Although he is not a lawyer, Dwyer possesses sufficient depth and knowledge to do justice to his subject. His stories are "told from the point of view of prosecutors, judges, jurors, defendants, and their counsel." What results is a compelling and accessible narrative, in which the "daily work of finding justice" is seen as "human, subject to all of the intimacies that go with ambition, fear, sense of duty, and the need for retribution." As such, the book is about "the impact of the law on the lives of people who make their work in it, and those who find themselves at odds with it."

Because New York City has been a major commercial and cultural center throughout U.S. history, the Southern and Eastern Districts of New York have long played a leading role in the federal court system.

The original Southern District was created in 1789, encompassing both Manhattan and Brooklyn. Appointed by President George Washington, the first U.S. Attorney served in the Southern District and established an office in Lower Manhattan. The author notes that, with a prestige that has been burnished for over two centuries, "the Southern District has served as a bellwether for political and cultural shifts in the nation, a place where at times hysteria has fueled injustice and at others humility and vision have laid foundations for future generations." The author also observes that, over the years, the Southern District has earned a reputation for charting a criminal justice path that is independent from the Justice Department brass in Washington. Because the book deals with cases prosecuted during President Barak Obama's tenure, Preet Bharara, the former U.S. Attorney for the Southern District, figures prominently in the book.

Located on the edge of downtown Brooklyn, the Eastern District was created in 1865, when Congress split it from the original Southern District. As described by the author, the Congressional debate focused "on a question that would seem preposterous now: whether New York City had too few courts or too few lawyers." Given the Eastern District's provenance, the author refers to it as the "scrappier younger sibling." Dwyer also observes, however, that the Eastern District "imprint on the American consciousness is without parallel," principally through its prosecutions of organized crime, national security, and counterterrorism cases.

Presenting a masterful account of federal criminal justice and the times that we live in, the book focuses on seven Southern and Eastern District prosecutions: (1) racketeering charges brought against Vincent Asaro, a caporegime in the Bonanno crime family, who allegedly participated in the famous 1978 "Lufthansa Heist" of $5.875 million at JFK Airport (EDNY); (2) cocaine charges against Chevelle Nesbit, a first-time offender whose conviction produced a novel and compassionate sentence from Judge Frederic Block (EDNY); (3) securities mispricing prosecution of Stefan Lumiere, a former bond portfolio manager for a Manhattan hedge fund (SDNY); (4) the conspiracy prosecution of Imran Rabbani, the first New York minor who was charged with attempting to support ISIS (EDNY); (5) conspiracy and weapons prosecution of Adnan Harun Hausa, an al-Qaeda member who was accused of participating in an attack on U.S. and coalition forces in Afghanistan (EDNY); (6) the conspiracy prosecution of Mahdi Hashi, the Somali-born British subject who allegedly provided material support to Al-Shabaab (EDNY); and (7) the public corruption prosecution of Sheldon Silver, former Speaker of the New York State Assembly (SDNY).

Three parts of the book stand out. The first is the Nebit case, in which Judge Block presided over the 2015 cocaine prosecution of a first-time offender who was convicted by a jury. The defendant faced a guidelines sentence of 33-41 months in prison. Providing insightful context, the author discusses the societal havoc wrought by the federal government's War on Drugs. Though well intentioned, the war had created a huge class of felons who, when they left prison, enjoyed few rights and faced a bleak future. In a landmark 44-page opinion, Judge Block ordered a sentence of just one year of probation, concluding that reform was necessary because the "collateral consequences" facing convicted felons were enough.

The second is the Silver public corruption case, in which the author focuses attention on Arleen Phillips, a juror who was impaneled during Silver's first trial, which produced a conviction that was later overturned by the Second Circuit. This portion of the book asks whether disgrace and the loss of "power" constitute punishment enough. As with the other cases featured in the book, the author provides excellent background, discussing the leading public corruption cases that have afflicted the city with "perfidy and graft since its founding."

In addition to serving as Assembly Speaker, Silver was also employed by a New York law firm that specialized in representing mesothelioma plaintiffs. At trial, one of the alleged schemes involved Dr. Robert Taub, who ran a New York clinic where research was conducted of diseases caused by asbestos. According to prosecutors, Silver directed $500,000 in state grants to Taub, who in turn referred asbestos claimants to Silver's firm, which in turn paid Silver millions of dollars even though he did no legal work on the cases.

During deliberations, Phillips became the lone juror against conviction. She expressed doubt about whether Taub and Silver "had engaged in a quid pro quo. She felt that the other jurors saw the two men's relationship in the worst possible light." As the deliberations progressed, Phillips experienced anxiety, feeling bullied, belittled, and marginalized by the other jurors. After the Thanksgiving break, however, the other jurors helped Phillips to review Silver's disclosure forms, which she finally agreed demonstrated concealment. With this, Phillips changed her mind and voted to convict. Later, however, when Silver was retried and reconvicted, Phillips expressed regret. "He lost his job," she said. "So I think he's received his punishment."

The best part of the book deals with the counterterrorism cases, involving defendants Imran Rabbani, Adnan Harun Hausa, and Mahdi Hashi. It provides a sweeping narrative of the enormous "power" federal government agencies possess to surveil, detect, interrogate, recruit as informants, arrest, and prosecute both jihadists and would-be jihadists. The face of such power in these cases is AUSAs Seth DuCharme, Shreve Ariail, and Matthew Jacobs. Each are given balanced treatment by the author.

Also featured is Judge Margot Brodie, herself a former Eastern District prosecutor. She sentenced Rabbani, a Queens native who was arrested at age 17 with a friend, Munther Omar Saleh. At the time of their arrest, the two teenagers had been under FBI surveillance. Saleh had allegedly been conspiring with ISIS to conduct a pressure cooker attack. For his part, Rabbani had done nothing so overt, but had visited radical Islamist websites and demonstrated a poor choice of friends. Noting Rabbani's strong family ties in Queens and academic success, Judge Brodie ordered a below-guidelines sentence, stating that while he had been going down the "wrong path" when he was arrested, she saw "much more good than evil" in him and did not believe he was an ISIS supporter.

Although the book portrays the prosecutors and judges in the counterterrorism cases in a positive light, Dwyer warns that the War on Terror has produced negative criminal justice side effects.

In the realm of military action, Dwyer notes that drone strikes eliminate discrete threats, but also "engender greater anger and hatred on the ground." He writes that, as "law enforcement's counterterrorism strategies have overlapped with intelligence operations and military action, similar anger and hatred are produced." As chronicled throughout the book: "Surveillance, informant recruitment, sting operations—each created collateral damage among the innocent people and entire communities who found themselves targeted by investigators." Thus, he posits, each collision with the "state's counterterrorism apparatus becomes an almost universal milestone in the radicalization process[.]"

In identifying the "epistemological problem at the center of counterterrorism," Dwyer makes two observations about power, intent, and unintended consequences. First, exercising the power to stop terrorism seems instead to have created more terrorists. Second, the state's power to define terrorism under the law seems to have become the power to, in effect, create terrorists. Given the trillions spent and countless persons affected, these are hard realities to accept. But they stress the importance of knowledge, experience, judgment, and the ability to adapt. This was the timeless message of Albert Camus's narrator in The Plague, who concluded that "good intentions may do as much harm as malevolence, if they lack understanding."

Jeffrey M. Winn is an attorney with the Chubb Group, a global insurer, and a member of the executive committee of the New York City Bar Association.