Lawyer Tied to Drug-Dealing Clients Is Denied Bond
Friday March 25, 3:00 am ET
Dan Christensen, Daily Business Review
Ratted out by his own clients, prominent Miami criminal defense lawyer Samuel I. Burstyn will remain behind bars until his trial on federal charges of conspiracy, money laundering, and obstruction of justice, a federal judge has ruled.
New government court filings show that two drug dealing clients, Jeffrey and David Tobin, secretly tape-recorded their conversations with Burstyn when he visited them in a federal prison following their arrests last year, prosecutors said.
Now it's Burstyn's turn to anticipate a long stretch in prison. Agents arrested him a month ago at his Miami Beach mansion for his alleged role as "house counsel" for a drug gang. He hoped to get out of the Federal Detention Center in downtown Miami after a Feb. 28 ruling by U.S. Magistrate Barry S. Seltzer of Fort Lauderdale, Fla., that he be allowed to post a $400,000 bond under certain conditions. Those conditions included not taking new clients and telling his existing clients he'd been indicted.
But Assistant U.S. Attorneys J. Brian McCormick and Michael J. Dittoe took the unusual step of appealing the magistrate's bond order. Among their arguments: Bond was improper because Burstyn is dangerous and has the motive, resources and contacts to flee the country.
In his order last Friday, Chief U.S. District Judge William J. Zloch of Fort Lauderdale granted the government's appeal. Burstyn, he decided, "poses a serious danger to the community and is a serious flight risk."
Fort Lauderdale defense attorney Fred Haddad, who took over Burstyn's defense from Miami attorney Edward R. Shohat earlier this month, said Zloch's order would be appealed to the 11th U.S. Circuit Court of Appeals in Atlanta.
"Absolutely, I'm working on it now," Haddad said. "I don't see a basis for detaining him. There are plenty of attorneys out there with clients who are alleged to be worse than him, but they aren't in jail. But we are talking about the Southern District of Florida and detention's a way of life here."
Haddad said Zloch's ruling disappointed Burstyn, 52. "He's not happy, but he wasn't happy from the minute they presented the indictment. It's hard to imagine how the government takes this stuff and runs with it and then says outrageous things in the detention hearing."
While Burstyn remains incarcerated, several attorney friends are helping keep his solo practice in Miami afloat by assisting his clients in their cases.
IMPLICATED BY CLIENTS
Government documents filed this month show Burstyn was targeted and indicted based on the cooperation of the Tobins. Those longtime clients retained new counsel last year for reasons that have not been publicly explained and went on to cooperate "on a variety of criminal investigations. They also informed the government about the criminal involvement of Burstyn in both money laundering and the systematic obstruction of justice."
As part of that cooperation, the Tobins wore hidden microphones and made secret audiotapes of Burstyn when he met with them at the Federal Detention Center following their arrests early last year. At those meetings, Burstyn sought to "ensure that the cooperation of Jeffrey and David Tobin would be limited to drug dealers and would not include the criminal involvement of Burstyn," the government court filings said.
The privileged status of attorney-client conversations affords no protection to Burstyn. The courts have held that privilege belongs to the client, not the lawyer.
"If clients have a mind set to set up their lawyer before they are convicted or while their case is pending, or if they have the ability to do it, they'll do it," Haddad said.
Caution is the watchword among criminal defense lawyers in South Florida these days.
"You can fully anticipate now that if a client is going to cooperate with the government, at some point they'll ask, 'Did the lawyer do anything wrong?' It happens all the time," said Shohat, who represented Burstyn during the bond appeal.
"We are certainly in a time when you need to be extremely careful," Shohat said.
A spokesman for the U.S. Attorney's Office did not respond to requests for comment.
The Tobins each pleaded guilty in December to conspiracy to engage in racketeering before U.S. District Judge James I. Cohn in Fort Lauderdale. Jeffrey Tobin was sentenced to 196 months in prison; David Tobin drew a 135-month sentence.
Burstyn's indictment, originally returned in October under seal, alleges that as "house counsel" to the Tobins' cocaine and marijuana trafficking "enterprise," he gave advice on matters related to the ongoing conspiracy, including the hiring of attorneys for gang members to protect them and keep them from cooperating with law enforcement. He also advised how to hide drug profits, provided false and misleading statements to a grand jury and federal agents, and at one point, counseled Jeffrey Tobin and another gang member to flee the country to avoid arrest.
The indictment also accuses Burstyn of using his lawyer's trust account to lend nearly $500,000 to a drug gang associate, Rodney Fund, who had set up a car dealership in Atlanta to help generate noncriminal proceeds. The loan allegedly was collateralized by drug proceeds from Jeffrey Tobin.
In asking Zloch to keep Burstyn locked up, prosecutors used excerpts of Burstyn's recorded conversations with the Tobin brothers. Although transcripts of those tapes filed with the court appear open to different interpretation, the prosecutors said the tapes corroborate Burstyn's criminal involvement.
In his analysis, Zloch said that while defense evidence suggests that Burstyn has strong ties to the community and "is a law-abiding citizen unlikely to pose a danger to the community" the tapes trump it. These tapes "suggest a strong evidentiary basis for the government's conclusions," the judge said.
"Of particular concern to the court is strong evidence suggesting defendant counseled two of his clients to flee the court's jurisdiction," Zloch wrote. "The court is concerned that one who counsels others to flee in order to avoid prosecution may himself, under the right circumstances, do the same."
But Zloch brushed aside yet another reason cited by prosecutors to detain Burstyn -- that 18 years ago Burstyn allegedly participated in a conspiracy to murder a witness in the "Miami River Cops" drug corruption case.
"Given that the government claims it has had knowledge of this evidence for nearly two decades, but has never acted, the court accords that evidence little weight," Zloch said.
Zloch's order denying bond, however, had other bad news for Burstyn regarding the prison stretch he faces if convicted.
In court filings, prosecutors said federal sentencing guidelines indicate Burstyn will get 10 to 20 years in prison if convicted on all seven counts. Zloch, in a footnote, said the Supreme Court's recent decision in U.S. v Booker that the guidelines are "merely advisory" means Burstyn now faces a maximum term "of over 50 years."