Defense attorney withdraws motion alleging ICE denied access to lawyer

March 7, 2019

A defense attorney who had alleged ICE agents and a federal prosecutor kept a man from seeing his lawyer the day of a raid last summer now says it was a miscommunication within his office.

At the start of a hearing last week in Eric Beringer’s case, his attorney, John Berry, asked to withdraw his motion, and briefs supporting it, that had sought to keep Beringer’s statements from going in front of a jury.

Berry got a bit of a tongue-lashing over it.

At Thursday’s hearing, Assistant U.S. Attorney Lesley Woods asked for clarification about whether there were factual inaccuracies in his motion.

U.S. Magistrate Judge Cheryl Zwart said she would like to hear about that, too.

“Frankly some of the facts that were placed in the brief were, let’s just say, they painted a very negative picture of the government,” the judge said. “And if they were not true I want to hear that they were not true. I don’t think we can just sweep that kind of thing under the rug.”

In the documents, Berry had alleged that an Immigration and Customs Enforcement agent wouldn’t allow an attorney with his firm, Justin Kalemkiarian, to meet with Beringer when he got to Grand Island on Aug. 8, the day federal agents arrested him at Elkhorn River Farms near O’Neill on allegations he was part of a conspiracy to harbor and exploit workers here illegally.

Berry originally said that Beringer was being interviewed at the time, despite leaving a message for Woods that his office was representing him.

In court documents, he called it an “effective hijacking of the Constitution.”

In a brief that followed, Woods denied it, saying the voicemail she got from Berry said his office would be representing one of the supervisors but didn’t clarify which.

And, she said, by the time Kalemkiarian arrived that night, Beringer already had been interviewed after being properly advised of and waiving his right to counsel and his right to remain silent.

At last week’s hearing, Berry said the most important factor in withdrawing the motion is that Woods and the government did not know Beringer was represented when they talked to him.

He said after looking back at what happened, it became clear.

As for the problem with the timeline, Berry said Kalemkiarian got to the Hall County Jail around 6 p.m., when Beringer was being interrogated, but Beringer was in a holding facility elsewhere in town.

“So by the time, Mr. Kalemkiarian arrived at Mr. Beringer’s location, the interrogation was already complete. And the government did not have notice that Mr. Beringer was represented,” Berry said.

Zwart asked why he didn’t have all the facts before he wrote the brief that “threw the government under the bus.”

Berry said it happened because they had drafted the brief before getting additional discovery.

“There was collective knowledge and, unfortunately, that information was not shared. And so we ended up with … ” the defense attorney said before getting cut off by the judge.

“The end result of all of this is the reputation of members of ICE, (and) the reputation of an attorney in this room, was smeared,” Zwart said. “Over a miscommunication within your office. They deserve a public apology for that.”

Berry said he agreed and apologized. Woods said the government accepted the apology.

Zwart called what happened “very troubling,” because the brief also contained misstatements of law.

“We don’t operate in this courthouse like they do on television. On television attorneys can walk in and demand that police officers quit questioning people. That is not the attorney’s call,” she said.

Under the law, Beringer had to tell the agents he wanted an attorney present. And, Zwart said, she saw nothing to indicate that he had.

“I think what happened, Mr. Beringer, is your attorneys were very zealous,” she said. “And sometimes attorneys … start driving ahead of their headlights. And that’s what happened in this case.”

Zwart said that wasn’t Beringer’s fault.

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