UNITED STATES DISTRICT COURT
 

EASTERN DISTRICT OF MICHIGAN
 

SOUTHERN DIVISION
 

UNITED STATES OF AMERICA, 

Plaintiff, Case No. 09-20165 

HON. BERNARD A. FRIEDMAN 

vs. 

CRAIGALEO, 

Defendant. 

--------------_----:/ 

ORDER FOR SANCTIONS 

I.	 Introduction 

On April 13, 2010, at 11 :19 a.m, Defendant's attorney filed: 

DEFENDANT'S COMBINED MOrlON AND BRIEF IN SUPPORT OF AN ORDER
 

COMPELLING GOVERNMENT COMPLIANCE WITH THE
 

CRIME VICTIMS' RIGHTS ACT
 

CRAIG ALEO, by and through the un~ersigned attorney, hereby 

moves this Honorable Court for an order directing the prosecutor to file a 

formal motion, with notice to defense counsel, seeking permission for the 

child complainant's mother to speak at sentencing. 

At the sentencing on April 15, 2010, the Court denied the motion. 

On May 3, 2010, the Court issued a written opinion denying Defendant's motion (the 

"Opinion"). The Court noted in its Opinion that it found Defendant's Motion unwarranted and 

baseless, and that the Motion served solely as a "blatant attempt to intimidate the minor victim's 

mother." The Court f~d that Defendant's Motion inaccurately cited to the Crime Victim's 

1
 
Rights Act ("CVRA"), 18 U.S.C. §3771, and made unfounded assertions regarding steps a victim 

must take to be heard in open court. In addition, the Court ordered additional briefing on the 

question of appropriate sanctions, which the parties submitted in a timely manner. 

II. Analysis 

Defendant's brief affinns the Court's initial impression. Defendant's brief states that he 

"knew the Presentence Report stated the child's mother intended to address the Court at 

sentencing pursuant to the CVRA." Dft. Brf. p. 2. The Presentence Report was prepared on 

March 9,2010, and revised on April 12, 2010. The Presentence Report was disclosed to Counsel 

on March 23,2010. The Report stated, on page nine: 

"Victim Impact 

The victim's parents... have not submitted any victim impact statements related 

to the case, however, they plan on attending the defendant's sentencing hearing 

and have requested to speak." 

Counsel not only received the Presentence Report but filed timely objections. These 

objections made no mention of, nor took any exception to, the victim's parents' desire to speak 

nor articulated any issue as to his preserved client's "rights" pursuant to the CVRA. Incredibly, 

however, in his present brief, Counsel asserts that "Freeman did not know the substance ofthe 

victim impact statement, nor that the chi/d's/ather intended to address the Court." Dft. Brf. p. 3 

(emphasis added). 

The Presentence Report put Mr. Freeman on notice in no uncertain tenns that the 

"Parents ... have requested to speak." You would not need to be an experienced criminal 

2
 
defense lawyer/former federal and state prosecutor, as Counsel holds himself out to bel, to know 

that people have two parents: a father and a mother. If counsel desired to object, learn more, 

have notice or whatever, he could have made a request in a timely, appropriate manner. 

To get a proper perspective ofthis matter, it is important to see the e-mails exchanged in 

relation to statements to be made to the Court: 

---- Forwarded by Carol Mullins: 

From. "Brown, Eaton (USAMIE)" . 

TO: 

C:c: "Allen. Amy S" 

Date: 04/0.912010 09;58 AM 

Subject: ALEO 

I left you a voicemail, but ended up getting cut-off, so below is the nature of my voicemail 

The victim advocate/victim interview specialist and possibly the family of the victim in the ALEO case 

will be in Court on Thursday, April 15 at 1:30 p.m. for the sentencing. It is likely that one or more will 

make a statement. 

I am not sure if the Judge is planning on haVing people in the audience to watch court on Thursday 

afternoon, but I wanted to bring this to your attention because I anticipate that this will be a highlyemotional sentencing. It may be very difficult for the victim's family to have people watching while 

they speak about the crime. Of course, this is all in the Court's discretion, but I figured that this is 

something that the Judge may want to be aware of in advance of making plans with his guests. 

Please feel free to call if you have any questions. 

Eaton P. Brown 

Assistant United States Attorney 

Eastern District of Michigan 

211 West Fort Street, Suite 2001 

Detroit, Michigan 48226 

Phone: 313.226.9184 

Fax: 313.226.2621 

See Mr. Freeman's website formerfedlawyer.com. 

3 
Fw:ALEO 

cerol Mullins 10: Bernard FtJedman 04/091201011:3BAM 

This Jil~Ssilga'hasbeOllrl)plind 10. 

Judge, 

It may oo.a good lhiitg (hat Mr. Aleo will be senlence'dalOrlO al1 :30 InSlead ()fwith the others at 11 :00 

Car.ol L MUllins: Case Manager 

to the Honorable Bernard A.Friedman 

313·234.;5172 

Re: FW: ALEQ 

Bernard Friedman to: Carol Mullins 041091201002:01 PM 

CC; "am:"" Eaton (USAMIEr. ronnDlfedlaw)'ar,Siophen Thobum. 

Jennifer McManus 

rappreciate the heads up and Jam always glad when victims speak as I think it isimportanl in there own 

healing. I do haveawomen'sgroupvisUirig that day as you know. I am not sure of their schedule as we 

werestJ.ppos~ 10 have ell malters at Hand lunch at 1.2. My purpos:eln mOving thissElruenoingalong was 

Mr Aleo's health butWlthWltnes~s It ma.kesll even more eClinpeUlng.lcCln'lclose lhe courtroom but 

cenalnly could aSk the \vomen in the group lhatare vislllnginthe motlilngn6lto allend if the family feels 

slrongtythough I sospecuherewm fie others In the eOl:Jrtrodm as thlstase was reported I" IheDettbit 

paperS asweJlas the lo.cal Walled Lake paper. . 

4
 
RE: ALEO 

John Freeman 

to: 

bernard_friedman, carol_mullins 

04/12/201008:52 Ar'l 

Cc: 

"Eaton Brown (AUSAr, stephen_thobum, jennifer_mcmanus, formerfedlawyer 

Show Details 

History: This message has been replied to, 

Honorable Bernard Friedman, 

"(hank you forC9Pyingme on the e-maUs below, as the government did not provide me with a 

copy. 

It is my understanding that Mr. Aleo's sentencing is scheduled forl :30 p.m. This will allow him to 

attend () previously scheduled medical treatment in the morning (he is undergoing a series of 

dally hyperbaric chamber wound treatments). 

On behalf of f4r. Aleo, and his wife and sister who will also attend, ] respectfully request that the 

Court not Invite guests to his sentencing. I anticipate the sentencing will be very emotionally 

charged (or Hr. Aleo and his family under normal drcumstances. Having additional spectators 

present may unnecessarily enhance an already difficult situation. 

Thank you for your consideration. 

John Freeman, Esq. 

Uberty Center, Suite 200 

100 W. Big Beaver Rd. 

troy, MI 48084 

(248) 526·0555 (phone) 

(248) 250·5857 (fax) 

ThIll; olocl.ronlc m..l1 I,nnsmlsslon Is from tho L:lw Orrico ~f Jol," Froomlln. :Incl m:lY COt1l!:lItutolln :atfomoy-ellont 

communlc:ltlon 0' conlnln Inlonnntlon which Is p.rlvllo.Dod,.conndontl:lI, :md protoctod hy tho uttornoy-cllont or :It1omoy 

work product prlvllogos. It 15 not Intondod fa, tr:snsml.slilon· 10,'or rocolpt by, any unuuthClrh:od porcon". If you 0'0 n..t tho 

.nldro........r IncDndad ,acll'lont, plooso noto Ih..t disclcJsuro, copylno. dISIr'lbulion. or uso of tho contonts Of this mos",,,oo
 

1:1: prohlbltod. If you h:tvo rocul.,;od thIs tmnsmls510n 'n orro" pl03S0 dolata It ..nd d05trOY It wllllaUI copyIng It, nnd notIfy 

tho sandor by rOply a-mQU, or notlly uslmmodlotolY:lt our tolaphono numbor In tho Unltad Stnta& (240) 52600555, so tit:>. 

ou,;:sddross ,ocard mllY ba corroctad. 

5 
The Court finds it compelling that it was not until the emails dated April 9 through April 

12,2010, between the Court, the U.S. Attorney's Office and Counsel regarding the potential 

"difficulty" for the victim's family to speak to the Court, that Defendant filed his motion. 

Mr. Freeman had been in contact with the Court and with the Government attorney bye-mail and 

could have and should have raised his issues about the CVRA much sooner. 

This timeline alone, and Counsel's claim of lack of notice, strikes the Court as 

inconceivable. Counsel's brief states that "[a]s a zealous advocate for his client, Attorney 

Freeman's concern was that the victim impact statement could contain new, previously 

undisclosed, factual allegations which could then be used to establish factual matters relied upon 

by the Court in detennining a sentence." Dft. Brf. p. 3. This sentiment is akin to "ifpigs could 

fly." Had that truly been Counsel's concern, it should have been addressed with his initial 

objections to the Presentence Report; as a separate, yet timely filed, motion; the exchange of emails; a new e-mail; a phone call; or compliance with Rule 7.1.2 

The Court certainly does not seek to "chill the zealous advocacy of the defense bar in 

unpopular cases." Dft. Brf. p. 5. This matter has nothing to do with aggressively representing a 

client--just the opposite. It has to do with properly representing a client. The Court respects and 

appreciates attorneys that protect and aggressively advocate for their clients, but expects it to be 

done in good faith, in a timely and lawful fashion, following the rules of this Court, with civility, 

and without abusing the judicial process. The Court recognizes the importance of an aggressive 

and ardent defense for all criminal defendants. However, it can only draw the conclusion that the 

2 The Court notes that Counsel failed to comply with Local Rule 7.1 in seeking 

concurrence prior to filing its motion, discussed infra. 

6 
timing of Counsel's motion, after having had the presentence report for weeks, and following the 

email admission by the U.S. Attorney's Office that the victim's family was nervous about 

speaking in front of an audience because ofthe highly emotional nature ofDefendant's crime, his 

granddaughter being the victim, and for the other reasons contained in this Opinion, it appears 

that the motion served only to intimidate and harass the victim's family. 

Counsel now backpedals, stating in his current briefthat what he meant to say in his 

Motion is different from what he actually said. He now acknowledges that the protections 

afforded by the Sixth Amendment, including the protections of the Confrontation Clause, do not 

mmlY to a sentencing hearing. He states that by citing these rights, he "did not intend to assert a 

right of cross-examination or to intimidate the witness," but rather "to demonstrate that among 

the defendant's rights was the right to notice and an opportunity to be meaningfully heard at 

sentencing." Dft. Brf. p. 4-5. However, the actual language Defendant used in his Motion was 

"A defendants' constitutional rights always trump a victim's statutory rights, see, e.g., Davis v. 

Alaska, 415 U.S. 308, 319 (1974) ("the right of confrontation is paramount to the State's policy 

ofprotecting ajuvenile offender")." One could only read the preceding statement as an assertion 

of Defendant's proclaimed right of cross-examination ofthe victim. 

Counsel further acknowledges that while his Motion cited to caselaw regarding 

limitations on the testimony that may be received by the Court, he did not mean to assert the 

limitation in the sentencing context. This is senseless, as the only remaining issue before the 

Court was the sentencing. Counsel's Motion is clear in and ofitself, and his ex postfacto 

attempts to remedy his misleading and incorrect legal assertions are not convincing--again, far 

below the standard expected of the criminal bar in this court. 

7 
In fact, Counsel's present brief continues this trend, as he cites two cases for the 

proposition that "due process principles of notice and an opportunity to be heard apply to 

disputed facts at sentencing." Dft. Brf. p. 2. Defendant cites United States v. Hayes, 171 F.3d 

389 (6th Cir. 1999) and United States v. Silverman, 976 F.2d 1502 (6th Cir. 1992) to apparently 

argue that Defendant's right to review information that will be used at sentencing extends to a 

preview of the victim's CVRA statement. Once again, Counsel takes liberties in his reading of 

the law. Counsel's reliance on United States v. Hayes, 171 F.3d 389 (6th Cir. 1999) is without 

merit. In Hayes, the Court held that the sentencing judge's reliance on undisclosed victim impact 

letters in sentencing the defendant was plain error. Such holding is inapplicable to the present 

circumstances, as the victim's statement was to take place in open Court, prior to Defendant's 

statement, with adequate opportunity for Defendant to hear the victim's statement and to respond 

if he felt compelled to do so. The notion that undisclosed victim impact letters that were 

admittedly used in sentencing is somehow comparable to a statement made in open court is 

untenable. 

Likewise, Counsel's reliance on United States v. Silverman, 976 F.2d 1502 (6th Cir. 1992) 

is unwarranted. Counsel's quotations from Silverman indicate that he anticipated a need to 

dispute the accuracy and reliability of the victim's statement. He states, "in determining the 

relevant facts, sentencing judges are not restricted to information which would be admissible at 

trial. Any information may be considered, so long as it has sufficient indicia ofreliability to 

support its probable accuracy." Dft. Brf. p. 2 (emphasis in original)(quoting Silverman, 976 F.2d 

at 1504). Apparently, Counsel's argument is that he anticipated the possibility that the victim's 

statement regarding the impact of his crime on her and her family would lack "reliability" or 

8
 
"accuracy." Considering the horrific nature ofthe crime committed and no indication on how 

this belief could be formulated, it is hard to believe that any description of its impact could be 

overstated. 

However, even ifCounsel believed that this was possible, his citation to Silverman for 

support ofhis proposition is incorrect. Ironically, considering Counsel's loose interpretation of 

the law, Silverman not only confirmed that a Defendant is not entitled to trial-like procedural and 

constitutional protections at sentencing, but it further held that both the sentencing guidelines and 

traditional sentencing procedures permit consideration ofhearsay, including "second hand" 

hearsay from informants and unidentified sources in presentence reports, without confrontation if 

the district court finds it to have sufficient or minimally adequate indicia ofreliability. Given 

this holding, it is preposterous to argue that an in-court statement, by the victim in Defendant's 

presence, with an opportunity for Defendant to respond, deprived Defendant ofhis rights. 

The Court notes that after two opportunities, Counsel has yet to produce a single case 

standing for his proposition that a Defendant has a right to notice ofthe content of a victim 

impact statement prior to its presentation in open court or that the victim must file a motion in 

order to make a CVRA statement. 

The Court further notes that Defendant's Counsel failed to comply with the local rules 

requiring that a party filing a motion must first seek concurrence for the relief requested and so 

state in the motion. 

Local Criminal Rule 12.1 states: "(a) Motions in criminal cases shall be filed in 

accordance with the procedures set forth in LR 7.1." Local Rule 7.1 requires the 

following: 

9
 
LR 7.1 Motion Practice 

(a) Seeking Concurrence in Motions and Requests. 

(1) The movant must ascertain whether the 

contemplated motion, or request under Federal Rule of 

Civil Procedure 6(b)(1)(A), will be opposed. If the movant 

obtains concurrence, the parties or other persons involved 

may make the subject matter ofthe contemplated motion or 

request a matter ofrecord by stipulated order. 

(2) If concurrence is not obtained, the motion or request 

must state: 

(A) there was a conference between attorneys or 

unrepresentedparties and other persons entitled to 

be heard on the motion in which the movant 

explained the nature ofthe motion or request and 

its legal basis and requested but did not obtain 

concurrence in the reliefsought; or 

(B) despite reasonable efforts specified in the 

motion or request, the movant was unable to 

conduct a conference. (Emphasis added.) 

Counsel holds himself out as an "experienced" criminal defense lawyer and a former federal and 

state prosecutor having practiced in the United States District Court for the Eastern District of 

Michigan since 2000,3 yet he "blew off' one ofthe most important local rules. 

The Court believes that Counsel's blatant disregard for Local Rule 7.1 is yet another 

factor in demonstrating his motive and falls way below the standard of professionalism expected 

ofthe criminal defense bar in this court. 

III. Sanctions 

Rule 11 ofthe Federal Rules of Civil Procedure affords the district court the discretion to 

award sanctions when a party submits to the court pleadings, motions or papers that are presented 

for an improper purpose, are not warranted by existing law or a non-frivolous extension ofthe 

3 See Mr. Freeman's websiteformerfedlawyer.com. 

10 
law, or ifthe allegations and factual contentions do not have evidentiary support. See 

Fed.R.Civ.P. ll(b)(l) through (3). In addition, even if sanctions are appropriate under statute or 

various rules of the Federal Rules of Civil Procedure, the Supreme Court in Chambers v. 

NAsca, Inc., 501 U.S. 32 (1991) emphasized that the inherent authority ofthe Court is an 

independent basis for sanctioning bad faith conduct in litigation. 

In Chambers, the Supreme Court affirmed a district court's award of attorney's fees and 

litigation expenses for the defendant's series ofmeritless motions and pleadings and delaying 

actions. Chambers, 501 U.S. at 38. In affirming the district court's resort to its inherent authority 

for that award, despite the availability of other statutory sanction provisions, the Court stated: 

We discern no basis for holding that the sanctioning scheme ofthe statute and the 

rules displaces the inherent power to impose sanctions for the bad-faith conduct 

described above. These other mechanisms, taken alone or together, are not 

substitutes for the inherent power, for that power is both broader and narrower 

than other means of imposing sanctions. First, whereas each ofthe other 

mechanisms reaches only certain individuals or conduct, the inherent power 

extends to a full range of litigation abuses. At the very least, the inherent power 

must continue to exist to fill in the interstices. 

Chambers, 501 U.S. at 46. 

Here, while the Court finds that Defendant's Motion is in itself a sanctionable offense 

pursuant to Fed.R.Civ.P. 11, as it is meritless, frivolous and filed for an improper purpose, the 

Court believes that its inherent authority is the proper vehicle by which to impose sanctions. Had 

Counsel recognized the impropriety of his initial Motion, Rule 11 would have been sufficient to 

address his actions, as it serves to address a party's pleadings. However, Counsel's willful 

refusal to acknowledge the baseless motive, his violation of Rule 7.1, his failure to meet the 

standards of the criminal law bar, coupled with his meritless defense of his actions and yet 

11
 
another misleading interpretation ofrelevant caselaw, forces the Court to resort to its inherent 

authority to sanction. 

The Court believes that a sanction of$2,000.00, to be paid by Defendant's Counsel, is 

appropriate in these circumstances. In reaching this conclusion, the Court has considered the 

amount oftime it has expended in addressing Counsel's Motion, in reviewing the parties' 

responses, and in preparing the present Opinion. 

IV. Order 

Accordingly, 

IT IS ORDERED that Defendant's Counsel is to pay a sanction of $2,000.00 to the Clerk 

of the Court within ten days ofthe date ofthis Order. 

Dated: 6/ 't /2., I "

Detroit, Michigan 

UNITED STATES DISTRICT JUDGE 

RNARD A. FRIED AN 

12