In re Libretti
| Decision Date | 22 October 2015 |
| Docket Number | No. 2014–1555.,2014–1555. |
| Parties | In re Application of LIBRETTI. |
| Court | Ohio Supreme Court |
Deborah Zaccaro Hoffman, for applicant.
Paul G. Crist, for the Cleveland Metropolitan Bar Association.
James F. Lentz, North Olmsted, for amici curiae Citizens' Institute for Law and Public Policy and CURE–Ohio, in support of applicant.
Robert J. Wall, for amicus curiae Ohio Justice & Policy Center, in support of applicant.
Robert L. Tobik, John T. Martin, Erica Cunliffe, Jeffrey M. Gamso, Linda Hricko, Paul Kuzmins, Christopher Scott Maher, and Cullen Sweeney, Cleveland, as amici curiae, in support of applicant.
Pamela Daiker–Middaugh, Avery Friedman, C. Timothy Murphy, Amy Hollaway, Carole Heyward, Doron Kalir, Kenneth Kowalski, Cleveland, Stephen Lazarus, Cincinnati, Kevin O'Neill, John Plecnik, Peter Sayegh, Daniel Dropko, Joseph Buckley, Christopher Maher, and Dennis Terez, Cleveland, as amici curiae, in support of applicant.
{¶ 1} Joseph Victor Libretti Jr. of Cleveland, Ohio, has applied to register as a candidate for admission to the practice of law in Ohio. A two-person panel of the Cleveland Metropolitan Bar Association admissions committee interviewed Libretti on June 6, 2013, made a provisional finding that he possessed the requisite character, fitness, and moral qualifications for admission to the practice of law, and recommended that his application be approved.
However, the Board of Commissioners on Character and Fitness, having held a hearing at which Libretti testified and having considered Libretti's supplemental responses to his character and fitness questionnaire, recommends that Libretti's registration application be disapproved and that he be forever barred from reapplying for admission to the practice of law in Ohio. In support of that recommendation, the board cites Libretti's 1992 federal conviction under the "kingpin" statute for his role in organizing, managing, or supervising a criminal drug enterprise, his involvement in the sale of "spice"—a mix of shredded plant material and man-made chemicals that has been touted as a legal alternative to marijuana—following his release from prison, and his failure to fully disclose certain aspects of his postrelease conduct as required by the terms of his supervised release and by the application to register as a candidate for admission to the practice of law in Ohio.
{¶ 2} Libretti initially objected to the board's findings of fact and its recommendation that he be forever precluded from seeking admission to the Ohio bar but has since conceded that he failed to carry his burden of proving that he presently possesses the requisite character, fitness, and moral qualifications to practice law. Thus, the sole issue before this court is whether Libretti should ever be permitted to reapply as a candidate for admission to the Ohio bar. For the reasons that follow, we conclude that he should not.
{¶ 3} As of the time of the board hearing and Libretti's supplemental responses to his character and fitness questionnaire, Libretti was expected to graduate near the top of his class at the Cleveland Marshall College of Law in December 2014. More than two dozen character letters demonstrate that he is well liked by fellow students, professors, attorneys, and both past and present employers, who describe him as talented, intelligent, and hard working. While it appears that Libretti may possess an advocate's skills, his conduct during his supervised release and throughout this admissions process caused the board to question whether he has been fully rehabilitated and whether he will ever possess the requisite character, fitness, and moral qualifications to practice law in Ohio.
{¶ 4} In 1992, Libretti pleaded guilty to a felony count of engaging in a continuing criminal enterprise to distribute marijuana and cocaine in violation of 21 U.S.C. 848. Multiple other charges against him were dropped and he was sentenced to 20 years of imprisonment followed by five years of supervised release. In early 2008, after serving 16 years, he was released from prison and sent to a halfway house in Casper, Wyoming. He completed his supervised release in May 2013—approximately 18 months before he was expected to graduate from law school.
{¶ 5} Shortly after his release from prison and while he was on supervised release in Wyoming, Libretti began engaging in morally (if not legally) questionable conduct involving spice, the man-made marijuana alternative. At first, he used his credit card to finance the spice business of his roommate—a convicted drug dealer whom he had met in a halfway house after his release from prison—and ran the proceeds of that business through his bank account to avoid having them garnished to satisfy his roommate's child-support obligations. Libretti later stepped in to manage the business on a temporary basis when his roommate went to prison for a probation violation. But shortly after his roommate's release, authorities searched the home that the two men shared and seized quantities of spice, chemicals to manufacture spice, and $7,200 in cash. The following month, his roommate committed suicide, and Libretti continued his business—selling spice and its components to buyers in Wyoming even after he moved to Ohio in August 2010 to attend law school. He also recruited a known methamphetamine dealer to assist him in the endeavor.
{¶ 6} The terms and conditions of Libretti's supervised release required him to report his income to his probation officer and prohibited him from associating with persons engaged in criminal activity and with convicted felons. Because his roommate had set up a trust for the business revenue and advised Libretti that there was no need to report the income because the money legally belonged to the trust, Libretti chose not to report his spice income to his probation officer. Although he told his admissions-committee interviewers that he had fully complied with the terms of his supervised release, he later admitted that his failure to report the significant income generated by his spice business and his association with a known methamphetamine dealer violated those terms.
{¶ 7} In November 2010, Libretti learned that the United States Drug Enforcement Administration ("DEA") had issued a public notice that it would be scheduling five chemicals used to make spice, including one called JWH–018. He testified that he set out to liquidate his supply of JWH–018 before the DEA took action. But three months into his claimed liquidation, he ordered an additional $17,500 of that substance for a customer only to cancel the order when he learned that the DEA's scheduling order was imminent. The next day, March 1, 2011, the DEA scheduled JWH–018 and four other chemicals as controlled substances, making it illegal to possess or sell them in the United States.
{¶ 8} After the DEA order went into effect, Libretti gathered the spice and the JWH–018 that remained in his possession, packaged them in a U.S. Mail priority mailing box, and addressed it to his lawyer in Casper, Wyoming. Instead of mailing the package to his attorney or finding a safe and legal method to dispose of the chemicals, Libretti placed the package in a storage closet at his Cleveland, Ohio, apartment building. His continued possession of this controlled substance violated the law and the terms of his supervised release.
{¶ 9} In late March 2011, Libretti was indicted in Wyoming on a single count of conspiracy to distribute more than 50 grams of methamphetamine, though he was later acquitted. After his Cleveland apartment had been searched and he had instructed his attorney to request immunity, he directed authorities to the box of spice and JWH–018 that remained in his apartment-building storage closet.
{¶ 10} Although Libretti repeatedly claimed that his spice business was completely legal, he did not disclose its existence on his registration application in response to Question 23C, which asked, "Have you ever been engaged in your own business or been a director, an officer, a more than five percent shareholder, a partner or a joint venture [sic] in any business enterprise?" He did, however, mention his involvement in an "herbal incense" business during his admissions-committee interview. But even then, he failed to disclose that he had recruited a known methamphetamine dealer to distribute his product, had continued to run the enterprise after his roommate died, had used a trust to disguise income, and had possessed JWH–018 after it became a controlled substance.
{¶ 11} Libretti also failed to disclose a 2011 request for immunity on his registration application in response to Question 20(B), which asked, "Have you ever been granted immunity from prosecution?" He testified that although he had requested immunity, he had never received any confirmation that his request had been granted, and therefore he concluded that no disclosure was required. Given an April 6, 2011 DEA report stating that the assistant United States attorney had received approval to grant Libretti immunity with regard to the drug evidence seized from his Cleveland apartment on March 30, 2011, and Libretti's "highly tuned distrust" of prosecutors, law-enforcement personnel, and governmental agencies, the board did not believe his claimed ignorance. And the supplemental answers that Libretti submitted in May 2014 to address the immunity issue proved to be even less informative than his testimony, which the board deemed "evasive and not believable." In the end, the board determined that Libretti's omissions throughout the admissions process were deliberate.
{¶ 12} The board was also struck by what it described as Libretti's "amoral viewpoint" regarding his criminal activities and his subsequent spice operation. One of his admissions-committee interviewers testified that while Libretti described his conduct as stupid and foolish and recognized the...
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