Zarky's appellate and motions work is recognized by both prosecution and defense lawyers as among the best in the region. Significant accomplishments include:
1. Ratzlaf v. United States, 510 U.S. 135 (1994). Zarky wrote the Amicus brief for the National Association of Criminal Defense Lawyers and made significant contributions to petitioner's brief. The Court held that "willfulness" under the anti-structuring statutes (31 U.S.C. §§5322 and 5324(3)) required proof of the defendant's knowledge that structuring of monetary instruments is prohibited. Previously, all but one circuit had held that such proof was not required. Our amicus brief and argument were cited to and discussed in both the majority and dissenting opinions.
2. United States v. Miller. This was a 17 defendant corporate manslaughter prosecution, based upon the death of nine seamen when a factory trawler sank. The combined effect of several law firms' joint briefing effort was to force the government to radically restructure the indictment two times. The government's case was ultimately narrowed to a trial of only the corporation's chairman of the board.
In the final round of motions, Zarky's briefing convinced the court that 18 U.S.C. §2, the aiding and abetting statute, did not apply to 18 U.S.C. §1112 (a century-old, rarely used maritime manslaughter statute), despite a wealth of cases holding that §2 applies to virtually every criminal statute. This forced the government to proceed under 18 U.S.C. §1111, the normal manslaughter statute, which imposed a much higher standard of intent. Zarky's briefs then convinced the court to require a significantly higher intent under §1111 than that imposed under the Ninth Circuit model jury instruction. These two rulings, in combination with excellent trial work by another firm (counsel for the sole remaining defendant), resulted in an acquittal. The Assistant United States Attorney prosecuting the case described Zarky's motions as the best set of motions ever filed in the district.
3. United States v. Carpenter, 91 F.3d 1282 (9th Cir. 1996). This was apparently the first case to determine the status of criminal contempt as a felony or a misdemeanor in light of the Sentencing Guidelines. (Until the Guidelines, contempt had been sui generis, usually treated as a serious or petty crime depending on the actual sentence imposed.) The Ninth Circuit rejected the government's position that the defendant's criminal contempt was a felony.
4. United States v. Kammerdiener, 945 F.2d 300 (9th Cir. 1991). This was the first case to address whether Youth Corrections Act convictions could be counted toward a defendant's criminal history under the Sentencing Guidelines. The court held that they could not.
5. United States v. White, 766 F. Supp. 873 (E.D. Wa. 1991). The firm first succeeded in having the court order the government to provide a bill of particulars on its theories of complicity. The bill revealed that the government would be pursuing the so-called "responsible corporate officer doctrine," under which the government effectively sought to impose a negligence standard, notwithstanding the "knowingly" standard of the RCRA statute. We then moved to strike that portion of the bill of particulars. The motion was granted, resulting in the first reported opinion to reject the "responsible corporate officer" doctrine. That decision contributed to the government's ultimate dismissal of charges against our client.
6. United States v. Schwitters, Cr. 86-129D, Memorandum Opinion, (W.D. Wa., Oct. 23, 1987) (Dimmick, J.) This unreported opinion apparently was the first decision reversing a conviction because of a "responsible corporate officer" jury instruction.
7. United States v. McDonald, 740 F. Supp. 757 (D. Alaska 1990). The court granted a change of venue from Alaska to Tacoma, Washington. This victory significantly weakened the government's position, contributing to the extremely favorable result discussed under Dubitzky's significant accomplishments. (The opinion is also memorable for being the only reported federal criminal case to quote Jimmy Buffett lyrics.)
8. United States v. Yermian, 708 F.2d 365 (9th Cir. 1983). This was the first appellate decision holding (contrary to four other circuits) that an element under 18 U.S.C. §1001, false statements within the jurisdiction of a government agency, was knowledge that the statement would be presented to the government. (The decision was reversed 5-4, United States v. Yermian, 468 U.S. 63 (1984).)
9. Zarky has also authored a monograph in the BNA Special Report Series, Defending the Corporation in Criminal Prosecutions: A legal and Practical Guide to the Responsible Corporate Officer and Collective Knowledge Doctrines. This work focused on two different legal doctrines that the government has been pushing in order to make their task easier when prosecuting corporations and their officers. These theories have been especially prominent in environmental prosecutions. The monograph demonstrated the flaws in those theories, and, as shown above, the firm has successfully used those arguments in court. It has been cited in nearly 30 law review articles.
Zarky has also been lead counsel on several cases, with excellent results. These include the following:
10. The government threatened to charge the owner of a fishing company with numerous criminal violations pertaining to the purchase of untaxed alcohol. The violations supposedly occurred in an attempt to provide alcohol illegally to Alaska Native Americans. Although the government originally thought it had overwhelming evidence of an illegal intent to sell to Natives, the firm ultimately convinced the prosecutors that there were only minor, technical violations of the alcohol regulations. The government settled for a minor administrative penalty.
11. The government brought fraud charges against the owner of a timber export company, arising out of a lease of timber on Bureau of Indian Affair's land. Given the client's status as a non-citizen, the implications of a felony conviction were immense. The firm ultimately convinced the government to dismiss all individual charges and accept instead a plea by our client's corporation.
12. The government investigated the entire management of a fishing company for submitting false statements to National Marine Fisheries Service. Some witnesses directly implicated the president of the company, the firm's client. We nevertheless convinced the government not to charge him.