United States v. Minkkinen
| Decision Date | 22 May 2023 |
| Docket Number | CRIMINAL ACTION 2:22-cr-00163 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DAVID GERALD MINKKINEN SIVARAMAN SAMBASIVAM, Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
The Court has reviewed Defendants David Gerald Minkkinen's and Sivaraman Sambasivam's Motion to Recuse (Document 146) and the Government's Opposition to Defendants' Motion to Recuse (Document 157), as well as the attached exhibits. In addition, the Court has reviewed the Government's Ex Parte Motion to Seal and Review Recusal Documents Ex Parte & In Camera (Document 163) and the attached exhibits submitted in response to the Court's Order (Document 161) requiring the United States to supply all documents and communications related to the decision to recuse the United States Attorney's Office for the Northern District of West Virginia, but permit Assistant United States Attorney Andrew Cogar to remain on the case. For the reasons stated herein, the Court finds that the motion to recuse should be granted as to AUSA Cogar and his support staff.
The United States moved that the recusal documents and communications be filed under seal and viewed ex parte and in camera. It contends that the documents are protected by attorney-client privilege, attorney work product privilege, and the deliberative process privilege. The Court finds that the documents consist of privileged communications and that these communications between the U.S. Attorney's Office for the Northern District of West Virginia and the Executive Office for U.S. Attorneys General Counsel's Office should properly be maintained under seal and viewed ex parte. See generally, Aaron v. United States Dep't of Just., No. CV 09-00831 (HHK), 2011 WL 13253641 (D.D.C. July 15, 2011). To the extent that they are relevant to the Court's consideration of the motion to recuse, the Court will include a summary of their content herein, thereby ensuring that both the Defendants and the public have access to the relevant information.
FACTS[1]
The United States brought this case in a thirteen count Indictment (Document 1) returned on August 23, 2022. The Indictment names David Gerald Minkkinen and Sivaraman Sambasivam as Defendants. It alleges generally that, until 2013, Mr. Minkkinen and Mr. Sambasivam were employed at Deloitte & Touche, LLP, where they were involved with the Unemployment Insurance practice. “Deloitte uses a proprietary web-based software platform named Unemployment Framework for Automated Claim & Tax Services (“uFACTS”) to process unemployment insurance claims for state agencies.” (Indictment at ¶ 1.) Mr. Minkkinen and Mr. Sambasivam left Deloitte to work for Sagitec Solutions, LLC, where they were both senior partners with Sagitec's Unemployment Insurance practice. In 2015 Sagitec won a bid to design, develop, and implement an unemployment insurance software system for the states of Maryland and West Virginia, funded by the United States Department of Labor. The indictment alleges that they, and others, conspired to convert Deloitte's trade secrets related to its uFacts system for use by, and benefit of, Sagitec. The charges include conspiring in the theft of trade secrets, aiding and abetting the theft of trade secrets, wire fraud, and false statements.[2]
Although the Indictment was returned in this District, the investigation began in the Northern District of West Virginia. James Powers, an investigator for the West Virginia Commission on Special Investigations, received a whistleblower complaint claiming that Sagitec may have stolen intellectual property and engaged in other wrongdoing in relation to its contract with Workforce West Virginia. Mr. Powers informed AUSA Andrew Cogar of the investigation in the summer of 2016 and kept him informed as he investigated further. Mr. Cogar formally opened the investigation with the United States Attorney's Office for the Northern District of West Virginia on February 3, 2017.
William Ihlenfeld is the current United States Attorney for the Northern District of West Virginia. His nomination was confirmed on October 5, 2021. He previously served in the same role until December 2016, but the United States indicates he was not informed of the investigation into Sagitec prior to leaving office.[3]After leaving the U.S. Attorney's office, he joined the law firm of Bowles Rice, LLP. Sagitec was one of Mr. Ihlenfeld's clients at Bowles Rice. He participated in an extensive internal investigation by Sagitec in 2019 and 2020 related to the trade secrets claims that form the basis of the indictment. He interviewed witnesses, including the Defendants, on the same topics at issue in this criminal case. Mr. Minkkinen and Mr. Sambasivam were both interviewed by federal agents during the period in which Mr. Ihlenfeld represented Sagitec, and those interviews form the basis of false statement charges alleged against them. Mr. Sambasivam spoke with Mr. Ihlenfeld in preparation for his interview. Mr. Ihlenfeld negotiated with the United States Attorney's Office for the Northern District of West Virginia on behalf of Sagitec, which has not been charged.
Mr. Ihlenfeld was also part of a team that produced an internal investigative report related to these allegations prior to the Defendants being charged. Sagitec provided that report to the United States. The report documents certain materials that the Defendants and other employees used during their employment with Sagitec that may have originated with Deloitte. However, it concluded that the materials used did not constitute trade secrets and that no trade secrets were stolen from Deloitte. The internal investigation did not find that any Deloitte source code was removed from Deloitte or copied. Based on his role in authoring the internal investigative report and interviewing the Defendants, as well as other witnesses, the Defendants indicate that he is likely to be called as a witness at trial.
In addition to his representation of Sagitec, Mr. Ihlenfeld was a member of the West Virginia Legislature. He served on a Commission that oversaw the West Virginia Commission on Special Investigations (CSI) beginning in January 2021, while Mr. Powers was investigating this matter.
After Mr. Ihlenfeld returned as United States Attorney for the Northern District of West Virginia in 2021, the office submitted a list of matters in which he had potential conflicts to the Executive Office for U.S. Attorneys General Counsel's Office. The Northern District explained that Mr. Ihlenfeld had represented Sagitec on the same criminal matter that was approaching indictment in the Northern District and that it was a lengthy and complex investigation. The Executive Office explained that General Counsel's Office precedent called for recusal of the entire United States Attorney's Office where a newly appointed United States Attorney represented a defendant in the same matter, and concluded that recusal of the entire office, with carve-outs, would be appropriate. On December 23, 2021, an attorney with the General Counsel's Office for the Executive Office of United States Attorneys issued a memo explaining that the Associate Deputy Attorney General approved recusal of the entire United States Attorney's Office for the Northern District of West Virginia from the Sagitec matter and related matters and assigned the matter to the United States Attorney's Office for the Southern District of West Virginia. The memo also authorized Supervisory AUSA Andrew Cogar and his support staff to continue working on the matter under the direction and supervision of the Southern District of West Virginia, at the discretion of the United States Attorney for the Southern District of West Virginia.
Mr. Cogar signed the indictment and appears to be lead counsel in this matter, although Candina Heath, Senior Counsel for the Computer Crimes and Intellectual Property Section at DOJ, and Jonathon Storage, an AUSA with the Southern District of West Virginia, are also assigned to the case and have signed some filings or made appearances at hearings.[4] Mr. Cogar was appointed as a Special Assistant United States Attorney for the Southern District of West Virginia for purposes of this case. He otherwise remains employed by the Northern District of West Virginia, where Mr. Ihlenfeld remains ultimately responsible for his supervision and employment status, including raises, promotions, and discipline.
The Defendants argue that the continued involvement of Mr. Cogar and his staff in this prosecution creates at least an appearance of impropriety and conflict. They cite 28 U.S.C § 528 and its implementing regulation, 28 C.F.R. § 45.2, contending that (Def.s' Mot. at 9-10.) They point out that Mr. Cogar, while supervised by the Southern District in this case, remains employed by the Northern District, where Mr. Ihlenfeld has significant influence over his career. The Defendants suggest that Mr Cogar will “be forced to impeach or impugn the credibility of his own boss, Mr. Ihlenfeld, whose testimony (if truthful) will help exculpate Mr. Minkkinen and Mr. Sambasivam.” (Id. at 12.) They note that Mr. Cogar has a duty to explore whether Mr. Ihlenfeld possesses Brady information. They argue that Mr. Ihlenfeld's testimony is central to key issues in the case, and the conflict cannot be resolved without Mr. Cogar's recusal. The Defendants further argue that CSI Deputy Powers should be recused because Mr. Ihlenfeld was a Commissioner responsible for...
To continue reading
Request your trial