Trust between federal prosecutors and judges in Chicago is under new strain after the feds dropped charges this week tied to an attempted robbery of undercover federal officers in Country Club Hills — because new video of the incident came to light.
Frustrated by what appeared to be a lack of due diligence by prosecutors, U.S. Magistrate Judge Keri Holleb Hotaling said she’ll hold a hearing July 2 to decide whether the feds should be sanctioned in the case brought against Amir Fagan, Demond Edwards and Chashonn Toney.
“I think that we all know, as other colleagues in the district court bench have recently mentioned, that there is and always had been a presumption of regularity,” Holleb Hotaling told prosecutors during a Thursday hearing, according to a transcript.
She was referring to the legal principle that assumes federal officers act in good faith.
“This court is very concerned that I cannot rely on the information that is provided to me either from the U.S. Attorney’s Office or from agents … when I’m swearing out an affidavit now, right?”
The comments from Holleb Hotaling echoed those of U.S. District Judge April Perry, who last month told prosecutors “trust has been broken” after she discovered apparent prosecutorial misconduct during grand jury proceedings in the so-called “Broadview Six” case.
U.S. Attorney Andrew Boutros’ office has been under fire ever since, with elected officials calling for his resignation and former prosecutors calling out a “failure of leadership.”
But the case before Holleb Hotaling bears little in common with the “Broadview Six” case, which involved a grand jury indictment against six Operation Midway Blitz protesters. The two cases don’t even share a rank-and-file prosecutor.
Rather, in the latest case, the feds filed a criminal complaint June 11 against Fagan, Edwards and Toney. It accused Fagan and Edwards of pointing firearms at undercover agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives and trying to rob them.
It also said that an officer shot Edwards and accused Toney of hitting an ATF vehicle with a car he was driving while trying to flee the scene. Fagan was also shot.
But prosecutors moved Wednesday to dismiss the charges against Fagan, Edwards and Toney. They sought to do so without prejudice, meaning new charges could still be filed.
The request prompted the judge to order the release of Fagan and Toney, who had been held in custody.
The four-page motion explained that, on June 12 — one day after the filing of the complaint — an ATF official told Boutros’ “front office” about a video depicting the shooting of Edwards.
“The front office was not aware that the prosecuting team had not seen a copy of the video that was being discussed, and in fact, assumed that the video had been given to the prosecuting team,” Assistant U.S. Attorney Luke Fiedler wrote.
The “front office” told the “prosecuting team” that such a video existed Tuesday — four days later. An ATF special agent sent the “prosecuting team” an email later that day containing two videos, including one of Edwards’ shooting, according to Fiedler’s filing.
Fiedler referred to the video as “Exhibit 2.”
“Aspects of the Edwards shooting, as depicted in Exhibit 2, appear inconsistent with the description of the shooting as set forth in the complaint,” Fiedler wrote.
A Monday ATF email also apparently raised questions about Toney’s alleged flight, Fiedler added.
When she took the bench Thursday, Holleb Hotaling said she’d “never seen something like that in a filing with the court.” Holleb Hotaling has been a magistrate since 2023.
“I know I’ve only been on the bench a few years,” Holleb Hotaling said. “But I have been up here for a few years, and I see a lot of criminal things. … I’ve never seen something like that.”
She went on to question the feds about the distinction made in Fiedler’s motion between the “front office” and the “prosecuting team,” about the accuracy of the complaint she swore out against Fagan, Edwards and Toney, and whether she could trust information from the U.S. attorney’s office.
First Assistant U.S. Attorney Jason Yonan, the second-highest ranking official in Boutros’ office, explained that they wanted to be clear for the judge about the “folks that are actively working on the case,” so a distinction was made about the “front office.”
Still, Holleb Hotaling asked, “if you didn’t have the full information or the information was still in flux or too fluid, why present the complaint to the court at that time?”
Kees Vandenberg, chief of general crimes in Boutros’ office, said investigators always need more time to go through evidence in “reactive cases” that generate a criminal complaint.
“Right,” Holleb Hotaling replied. “But it needs to be accurate, right?”
Defense attorneys urged the judge to dismiss the charges against their clients permanently. She declined to do so, dismissing them without prejudice as prosecutors asked.
But she said she wanted to hold the additional hearing July 2 to consider sanctions against the feds.
The judge said she still had questions about what was known by an FBI agent when he swore to the facts supporting the criminal complaint.
“These are serious things,” Holleb Hotaling said.