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Investigative Reporting

Western Pa. prosecutors prioritize cybercrime

| Sunday, April 24, 2016, 10:30 p.m.
U.S. Attorney David Hickton speaks to the Tribune-Review on Friday, Feb. 26, 2016.
Guy Wathen | Tribune-Review
U.S. Attorney David Hickton speaks to the Tribune-Review on Friday, Feb. 26, 2016.

As federal prosecutors pursued an indictment against accused Russian hacker Evgeniy Bogachev in May 2014, U.S. Attorney for Western Pennsylvania David Hickton assigned nine of his 55 assistant attorneys to the case.

Earlier that same month, a separate investigation had led to the indictment of five Chinese military officers for hacking computers and stealing secrets from U.S. companies and organizations, including Pittsburgh-based U.S. Steel, Westinghouse Electric, Alcoa and the United Steelworkers of America union.

Democrat Hickton's focus on cybercrimes meant the Pittsburgh office had less time for other potential offenses, such as the illegal immigration cases favored by his Republican predecessor, Mary Beth Buchanan.

“We touch Canada through Lake Erie and Erie, Pa., but we had, when I got here, one of the highest percentages of immigration cases (outside of the Southwest border states),” Hickton told the Tribune-Review. “Certainly in my judgment, it was out of whack with the risk in this district.”

The number of illegal immigration cases in the district dropped to 15 last year, or 5 percent of the total caseload, from 78 cases or 17 percent of the cases in 2009.

“I would rather find Chinese hackers stealing from U.S. Steel,” said Hickton, who was appointed by President Obama.

The Trib built a database containing more than 5 million Justice Department records, including those covering about 1.8 million criminal matters handled by federal prosecutors in the 94 U.S. attorneys offices nationwide from 2005 through 2015.

There are some wide disparities in what types of crimes draw the most attention in different federal districts, the Trib analysis revealed. It also found that within a district, practices can vary greatly over time.

In the Western District of Pennsylvania, some crimes are almost always a priority while others move up and down as the president and the U.S. attorneys he appoints change.

“The U.S. attorney in each district sets the tone,” said Cassia Spohn, a criminal justice professor at Arizona State University. “Although they're operating under memoranda and rules from the Department of Justice, there's still a lot of discretion to craft policies and procedures that are district-specific.”

The attorney general in Washington oversees U.S. attorneys, but they serve at the pleasure of the president. That makes U.S. attorneys the “most unacknowledged important decision-makers” in the federal justice system, said James Eisenstein, a Penn State University professor emeritus of political science and criminology.

Still, some disparities are driven by Justice Department initiatives. Since 2005, Operation Streamline has federal prosecutors in Arizona, New Mexico and Texas charging first-time illegal immigrants with crimes instead of just deporting them. Consequently, immigration violations represent at least 82 percent of the cases they prosecute.

“The essential nature of prosecutions and what we do has never changed dramatically,” said Steve Kaufman, a 24-year prosecutor who oversees all federal criminal cases and has served under seven appointed or acting U.S. attorneys. “But each U.S. attorney has their own priorities and those reflect the priorities of the attorney general and the president at that time.”

Best-laid plans

Sometimes world events rewrite priorities. President Bush nominated Mary Beth Buchanan as the U.S. Attorney for the Western District of Pennsylvania on Sept. 5, 2001. The Senate confirmed her nomination Sept. 14, 2001, three days after the 9/11 terror attacks in New York, Washington and Somerset County.

“At that time, it didn't matter what I wanted to focus on,” Buchanan said. The first priority and main focus of the office for at least the next year was the detection and disruption of terrorism, she said.

In the aftermath, both Washington and local law enforcement pushed for more prosecutions of people who either illegally entered the country multiple times or who committed other crimes while they were here illegally, she said.

Taking on more illegal immigration cases was something the office could do without expending a lot of resources, she said. Buchanan doesn't buy Hickton's border district argument.

“If someone is illegally in the country, particularly if they've committed a crime, it doesn't matter where you find them,” Buchanan said. “They don't belong here.”

Washington influence

Congress created the position of attorney general, the federal court districts and their U.S. attorneys in 1789. However, the attorney general initially had no supervisory authority over the U.S. attorneys and was effectively a one-man show until Congress created the Justice Department in the Civil War era, Eisenstein says in his book, “Counsel for the United States.”

“Along comes the attorney general, and the attorney general is given the legal authority to supervise the work of the United States attorneys but the attorney general can't fire them,” Eisenstein said. “There is this residual strategic advantage that U.S. attorneys have.”

Hickton said that while he takes into account the department's priorities, he believes he's ultimately responsible for deciding the priorities for Western Pennsylvania. The Trib investigation found that from 2005 through 2015, strictly by the numbers, federal prosecutors in Western Pennsylvania most often have prosecuted drug trafficking, illegal immigration and firearms violations. They have had few cases tied to securities fraud and intellectual property violations.

The data, alone, does not tell the full story, Hickton said. The Bogachev case, for example, consumed a lot of resources but counted only once in the statistics.

“This is not a factory where we're measured by products and outputs,” Hickton said.

“I'm to do justice,” he said. “I'm not to be political when I do it, but I'm to exercise my judgment, establishing policies as a member of the executive branch.”

As a result, his office may handle crimes differently from how they're handled in Cleveland or California, and that's the way the system is supposed to work, he said.

While saying the job requires a balancing of national and local priorities, Buchanan said she also saw her role as carrying out Justice Department initiatives.

Some of those initiatives led to some of her most controversial cases, such as the prosecution of comedian Tommy Chong for selling name-brand marijuana pipes and of a California company for selling the “Whizzinator” device intended to help drug users pass government-mandated drug urine tests.

She said a Washington initiative also led to the six-year prosecution of a California company that produced and sold films depicting the kidnapping, rape and murder of women.

“For any office in any particular time period, you have to look at what's before you,” Buchanan said.

Balancing resources

The balancing act was particularly tough in the late 1970s, said Robert Cindrich, a former U.S. attorney for Western Pennsylvania and former federal judge. During his tenure as the top prosecutor, from 1978 to 1981, the Pittsburgh office was under a hiring freeze and he never had more than 18 of the 23 lawyers allocated. More often, the office had 14 lawyers, he said.

At the same time, the national priority was on white-collar crime — a type of case that takes the most time and resources to investigate and prosecute, Cindrich said. Consequently, for other types of crimes that could be prosecuted in either state or federal court, “there had to be a good reason for taking it federal,” he said.

Because of concerns that federal crimes were not being prosecuted, the budget and staff for U.S. attorneys nationwide more than doubled in the mid-1990s and increased again slightly after the 9/11 terror attacks.

Cindrich, who resigned his judge's position in 2004 partly because of federal mandatory sentencing laws, said prosecutorial discretion is at least as important as judicial discretion when it comes to deciding people's fates.

“Prosecution is the final, ultimate power of the government to take your liberty away,” he said.

That power needs to be tempered by reason and compassion, Cindrich said.

Hickton said his prosecutors are proactive in finding crimes to prosecute but agreed that local resources play a role in priorities.

In his fight against cybercrime, Hickton often cites the Pittsburgh region's unique resources, such as experts at Carnegie Mellon University, the University of Pittsburgh and the FBI field office.

Al Lindsay, a criminal defense lawyer and an assistant U.S. attorney from 1975 to 1980, said Pittsburgh office priorities then were a mix of the U.S. attorneys' policies and the abilities of local investigators.

The district led the country in public corruption prosecutions partly because U.S. attorneys Richard Thornburgh — a former Pennsylvania governor and Attorney General under President Ronald Reagan — and Blair Griffith encouraged them to pursue those cases during their tenures. But another factor was that several FBI agents and U.S. Postal Service inspectors loved working public corruption cases, he said.

The district also did more than 50 arson cases while he was there because another postal inspector had a knack for detecting arson by looking at the insurance claims owners filed after a fire, he said.

A good agent made an assistant U.S. attorney “look like he knew what he was doing,” Lindsay said with a laugh.

Editor's Note: This is one in an occasional series.

Brian Bowling is a Tribune-Review staff writer. Reach him at 412-325-4301 or bbowling@tribweb.com. Andrew Conte is a member of the Tribune-Review investigations team. Reach him at 412-320-7835 or andrewconte@tribweb.com.

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