Why does a prosecutor indict a defendant on 14 felony counts in 2017, only to dismiss all charges except a single misdemeanor three years later, then recommend no jail time to the judge? (“Probation for U prof who lied to the IRS,” Jan. 24.)
Why does a U.S. Attorney’s Office boast in an indictment that a defendant engaged in a “brazen theft of millions of dollars of investor’s funds,” only to have its prosecutor stand up in court three years later and retract those allegations?
And why does a defendant plead guilty in 2020 to failing to provide information to the IRS in 2011 — when the statute of limitations already has expired and he voluntarily provided everything in a 2015 closing agreement that the IRS accepted as a final determination of his correct taxes?
Anyone who hasn’t collided with our American criminal justice system may be stumped by such questions. But those of us who have been there know that what recently happened to University of Minnesota law Prof. Ed Adams is the tragic but common outcome of our overzealous prosecutorial culture.
I followed Adams’ criminal prosecution from the beginning. Like many corporate targets of a federal prosecution, he contacted me after reading my book “Cardiac Arrest” and wanted to get a former defendant’s perspective on what he was about to face.
And even though Adams is an experienced lawyer and law professor, in our first meeting he acted like most other criminal defendants I’ve encountered — he could not believe that prosecutors were going to indict him on false criminal charges.
I assured him that the old saying that a prosecutor could indict a ham sandwich was true, and the only question was whether these prosecutors wanted to indict him.
They did, for reasons that showed in their news release describing Adams’ alleged fraud as “compounded by the fact that he holds positions of public trust as an attorney and law school faculty member.” To show they were tough on a privileged white-collar criminal, the prosecutors had Adams arrested and put in jail.
Since Adams was unable to respond to the prosecutors’ allegations of his “multi-million dollar corporate fraud scheme,” all of the news stories about his indictment were predictably damning. As a result, Adams was put on administrative leave by the law school for the next three years.
Adams had one major advantage few criminal defendants have. Like me, Adams had the financial ability to hire excellent defense lawyers to counter the limitless resources of federal prosecutors.
And as his defense team began to file their motions, the true facts of his case began to emerge.
Adams’ prosecution centered on Apollo Diamond, a company started by his father-in-law and brother-in-law in the early 2000s that manufactured synthetic diamonds for industrial uses.
Early on, Adams’ in-laws requested his help — first as a lawyer, then as a fundraiser and eventually as chairman of the board. Similar to most startups, Apollo had little capital in those early days, so Adams was paid for his services in part with warrants to buy Apollo stock.
After helping get the company started, Adams, along with a few other initial shareholders, sold some of their warrants to accredited investors in 2008, 2009 and 2010. Appropriately, Adams’ accountant included the profit from his sale of Apollo warrants in Adams’ tax returns for those years.
But when Adams hired a new accountant to prepare his 2014 tax return, the new accountant recalculated Adams’ prior years’ taxes and recommended he file an amended return to pay the IRS an additional $117,000. Adams voluntarily contacted the IRS and entered into an agreement to pay all of the taxes the IRS believed were owed on the sale of warrants, plus interest, as final settlement in August 2015.
By that time, new management was running Apollo and Adams had removed himself from the company. Eventually, Apollo’s business was sold for pennies, after which at least one disgruntled shareholder contacted the U.S. Attorney’s Office in Minnesota to pitch prosecutors on a story that was too juicy to pass up — a law professor making millions from selling warrants in a failed business that tried to turn carbon into diamonds.
A criminal investigation commenced, leading to Adams’ indictment in 2017.
From there it took three years to get a trial date when Adams could finally be exonerated. Two months before trial was scheduled to begin, however, a new prosecutor took over and saw the case for what it was. Instead of a trial, he offered Adams a deal he couldn’t refuse — a single misdemeanor plea to failing to provide information to the IRS in 2011, no prison time, a $5,000 fine, and dismissal of all allegations that Adams had defrauded investors or underpaid his taxes.
In response, Adams did what virtually every other defendant does in this situation — he clenched his teeth, told the judge he accepted responsibility, and pleaded guilty to end the expense, pain and uncertainty of a jury trial that could bankrupt him and put him in prison for years.
It didn’t matter that the misdemeanor he pleaded guilty to was barred by the three-year statute of limitations. It didn’t matter that his 2014 IRS settlement agreement barred any further action by the United States or any of its agents. Adams pleaded guilty simply to stop the bone-crushing punishment of the criminal process.
So why did this occur?
The culture in U.S. Attorney’s Offices not only allows but encourages prosecutors to use whistleblower allegations to bring scandalous criminal charges. A prosecutor gets accolades and promotions for prosecuting cases and winning big convictions — and never gets punished for false allegations. Since every businessperson can be indicted every year by our one-sided grand jury system, what happened to Adams can happen to anyone.
Of course there are some bad corporate actors who deserve prosecution. Of course there are some prosecutors who work to achieve justice, not scalps. And of course there are some whistleblowers who expose corporate wrongdoing.
But a prosecutorial culture that rewards prosecutions based on one-sided information and fails to punish overreaching creates many cases just like this one.
With his prosecution now concluded, Adams hopefully can start to resume a normal life. And as he does, I hope he’ll return to the University of Minnesota Law School and use his unique perspective to teach future prosecutors what they should and should not do in the interests of justice.
Howard Root is the retired CEO of Vascular Solutions Inc. and author of “Cardiac Arrest: Five Heart Stopping Years as a CEO on the Feds’ Hit-List.” He was acquitted of federal criminal charges in 2016.