IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES, 

)

Plaintiff, )

)

v. ) Case No. 11 CR 800 

)

SALIOU MBAYE, )

)

Defendant. )

MEMORANDUM ORDER

At the conclusion of the December 29 hearing inquiring into the appropriateness of the 

claim by attorney Francis Baumgart (“Baumgart”) for fees under the Criminal Justice Act, based 

on his representation of defendant Saliou Mbaye (“Mbaye”) before attorney Baumgart was 

terminated from the Federal Defender Program, Assistant United States Attorney Joel 

Hammerman was directed to make arrangements for former Assistant United States Attorney 

Dylan Smith (“Smith”) to be available to testify in the continued hearing at a time mutually 

convenient for counsel and this Court. Because of Mbaye’s decision not to testify during the 

hearing, coupled with this Court’s consequent determination that it would not require him to do 

so, there is no need to arrange for his availability for the continued hearing. Accordingly this 

Court currently contemplates that what remains for inquiry will be (1) the Smith testimony and 

(2) follow-up testimony from attorney Baumgart as to issues raised by the Smith testimony. 

As counsel are aware, this Court has referred at several points during the hearing to just 

one facet of Mbaye’s trial testimony that revealed obvious falsehoods on his part -- the checks 

prepared by him that were blatantly at odds with the truth. But in this Court’s view attorney 
Baumgart has persistently played ostrich by constantly repeating and stressing Mbaye’s belief 

that he had done nothing illegal as the predicate for his decision to go to trial, while at the same 

time Baumgart has studiously (or not so studiously) avoided the issues as to the representation 

that he provided (or did not provide) to Mbaye. That representation or lack of representation 

would seem to entitle (or disentitle) Baumgart to be paid by the government for his services 

under the Criminal Justice Act, for adequate representation would appear to call for full 

disclosure and explanation to Mbaye of his having to testify as a witness at trial as to acts that he 

had admittedly engaged in to further the fraud that formed the gravamen on which the jury 

convicted him. 

What Baumgart has done to this point is simply to stress Mbaye’s decision to go to trial, a 

decision that necessarily placed him on the stand as a witness, while at the same time glossing 

over (or ignoring entirely) the lawyer’s responsibility to make certain that a client with no legal 

experience or training has made a fully informed decision. That is the essence of a lawyer’s 

responsibility as adviser as well as advocate. Hence attorney Smith should, in preparation for his 

testimony, refresh himself and be prepared to testify as to various of the components of the 

scheme, in addition to the placement of false information on the checks drawn by Mbaye that 

this Court has already adverted to as examples of Mbaye’s admitted complicity that could 

unquestionably be ascribed to Mbaye himself. 

Because this Court has not retained any files from this long-ago-disposed-of criminal 

case, it has obtained a copy of the government’s brief on the pending appeal and attaches a copy 

of its pages 3 through 8 to this memorandum order. Attorney Smith should be prepared to testify 

as to facts set out there, and perhaps as to other aspects of the government’s direct proof as to 

Mbaye’s own conduct (not based on inferences drawn from other witnesses’ testimony). In 

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short, such testimony should focus on matters that competent criminal defense attorneys have the 

responsibility to bring directly to their clients’ attention as the inevitable consequence of their 

decision to go to trial -- a consequence that would just as inevitably confront Mbaye with the 

Hobson’s choice of either lying or acknowledging his guilt. 

That then is intended to provide the backdrop against which Baumgart will be called 

upon to answer directly, and not seek as before to deflect, the question as to his own entitlement 

(or lack of entitlement) to the payment of fees under the Criminal Justice Act. This Court will 

await notification from Baumgart and AUSA Hammerman as to their availability for the 

continued hearing. 

__________________________________________

Milton I. Shadur

Date: January 7 , 2016 Senior United States District Judge

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