Saturday, June 17, 2017

Misreading Rod Rosenstein and Missing a New Angle on Obstruction

Talking heads were in a dither yesterday, trying to decipher DAG Rosenstein's brief statement about the danger of relying on news accounts from supposedly reliable sources. See here for the Washington Post's account. Below is Rosenstein's statement in full:

Americans should exercise caution before accepting as true any stories attributed to anonymous ‘officials,’ particularly when they do not identify the country — let alone the branch of agency of government — with which the alleged sources supposedly are affiliated. Americans should be skeptical about anonymous allegations. The Department of Justice has a long established policy to neither confirm nor deny such allegations.

My reading of it is simple. Any prosecutor or case agent who has ever been involved in a high-profile investigation knows that the vast majority of press accounts about the investigation are far off the mark. Rosenstein is acutely aware of this phenomenon, having worked for Ken Starr in the Office of Independent Counsel in pre-Monica days. Yet the prosecutors and case agents are generally not allowed to talk to the press about the investigation, even to rebut preposterous stories, because this would entail disclosing highly confidential information, and prosecutors and case agents are subject to strict secrecy obligations. Self-important and self-interested people, however, inside and outside of law enforcement, love to parade their inside knowledge to the press, even anonymously. Rosenstein is trying to make that point, but he is doing something else as well. I think he is trying to throw a lifeline to Bob Mueller.

As those who professes to be an expert on television should know, sources interviewed by the government or brought before the grand jury are not, except in rare instances, under any obligation of secrecy. So a person whose lawyer is called by an Assistant Special Counsel or FBI Special Agent and asked to schedule an interview or accept service of a federal grand jury subpoena can shout it to the rooftops or anonymously leak it.

What if the source contacted by the government for an interview is strategically aligned with the target or subject of the overall investigation? What better way to conspire to attack the prosecution team than to anonymously leak your client's upcoming interview or grand jury appearance to the press, tip off the main subject's lawyer, and then sit back and watch while that lawyer attacks the prosecution team for illegal leaks? It is possible that something like this is happening right now to Mueller and company, and I believe that Rosenstein's statement was meant to cover this situation as well. The bottom line is that Mueller and company may not be leaking anything, yet are essentially powerless to do anything about the accusations against them.

But what if there really is an orchestrated effort by President Trump and his attorneys to have their allies leak to the press and then falsely accuse Team Mueller? In my view, this might supply the falsehood element that is required to prove a criminal obstruction of justice and has been, so far as we know, missing in the case of President Trump--Jeff Toobin and company to the contrary notwithstanding. Absent the extra element of lying or bribery, the firing of Comey or anybody else by Trump does not constitute obstruction. As I have previously said in these pages with regard to Comey's firing:

[B]arring new information, the idea that [Comey's] firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.

This kind of thing would be extremely difficult to prove, and trying to prove it could seriously sidetrack the investigation and alienate the press. But if it is happening and Mueller can prove it, such conduct could constitute criminal obstruction of justice.

(wisenberg)

June 17, 2017 | Permalink | Comments (0)

Wednesday, June 7, 2017

DOJ Ends Third Party Settlement Practice - But What is No Longer Allowed?

Attorney General Jeff Sessions issued a press release today here putting an end to settlements that had payments to third parties as a condition of settlement. The press release says that " [w]ith this directive, we are ending this practice and ensuring that settlement funds are only used to compensate victims, redress harm, and punish and deter unlawful conduct.”  

Will this mean that Chris Christie's agreement as US Attorney with Bristol-Myers Squibb and the University of Medicine and Dentistry of New Jersey that included an endowment of an ethics chair to Seton Hall Law School, will no longer be allowed in future agreements(see here, here, and here - see para. 20)? 

And will all the groups receiving funds from the BP Plea Agreement find that innovative resolutions will no longer be allowed in the future agreements?  For example the BP plea agreement included $350 million to the National Academy of Sciences for the purposes of Oil Spill prevention and response in the Gulf of Mexico. (see here)  The Court stated there -

"The National Academy of Sciences is required to use the funds to advance scientific and technical understanding to improve the safety of offshore oil drilling, production and transportation in the Gulf of Mexico." 

"Of course, the Court realizes that the fines and other penalties provided by the plea agreement can do nothing to restore the lives of the 11 men who were killed. But in the payment to the National Academy of Sciences, the agreement at least directs money towards preventing similar tragedies in the future. That the bulk of the payments to be made under the plea agreement are directed toward restoring the Gulf Coast and preventing future disasters, contributes to the reasonableness of the plea agreement."

AG Sessions says that "[u]nder the last Administration, the Department repeatedly required settling parties to pay settlement funds to third party community organizations that were not directly involved in the litigation or harmed by the defendant’s conduct.  Pursuant to the Attorney General’s memorandum, this practice will immediately stop."

It remains to be seen what will get included and what will be omitted in future non-prosecution, deferred prosecution, and plea agreements.  The actual memo is here.

(esp) 

June 7, 2017 in Civil Enforcement, Deferred Prosecution Agreements, Environment, News, Prosecutions, Prosecutors | Permalink | Comments (0)

Tuesday, May 23, 2017

Environmental Crime Prosecutions Down

Trac reports - "The latest available data from the Justice Department show that during the first six months of FY 2017 the government reported 152 new environment prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 304 for this fiscal year. According to the case- by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate would be the lowest ever recorded since the Justice Department started tracking its environmental prosecutions over two decades ago."  For more information and data see here.

(esp)(w/disclosure that she received her BS degree from Syracuse University).

May 23, 2017 in Environment, Privileges | Permalink | Comments (0)

Saturday, May 20, 2017

Pucker Up Buttercups: It's Mueller Time

Scattershooting, while wondering whatever happened to John B. Henderson

The appointment of Bob Mueller as Special Counsel sends an unmistakable signal to every politico, white collar lawyer and potential target in DC. It's time to get serious. Think Fitzgerald on steroids. This will be a real investigation, with a real grand jury, and real prosecutors who know how to investigate, prosecute and keep their mouths shut. Expect plenty of collateral damage as well. There won't be any immunity giveaways or hand-wringing negotiations over the breadth of subpoenas. 

A number of commentators have suggested that Mueller is only "overseeing" the Russia Investigation, apparently in the same sense that an Attorney General oversees various criminal investigations within DOJ. Get a grip. Mueller will be totally involved in all strategic and tactical aspects of the case. He will be hands on. For God's sake, he and his lieutenants just resigned from their partnerships at Wilmer Hale to take on what could be one of the most significant criminal investigations in U.S. History, an investigation with profound implications for the country. He'll be there every day, every step of the way, and in total control. 

In today's WSJ (subscription required), Kimberly Strassel plants the seeds, in The Mueller Caveat, for a future Trump attack on Mueller. Of course Mueller's integrity is "unquestioned" but Strassel asks whether he can be "objective" about his old buddy Comey. This question assumes that Comey's firing will loom large in the Russia Investigation. I seriously doubt it. The contacts between Comey and President Trump in the period between inauguration and firing will certainly be looked at as a key to President Trump's intent and motives. But, barring new information, the idea that the firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.

Meanwhile, over on the left, the Comey flacks are out in force. It's comedy time at the New York Times with Saint James and Ben Wittes in starring roles. Michael S. Schmidt's NYT puff piece on Comey is a classic of the genre. Lawfare's Ben Wittes, an admitted Comey confidante, is interviewed and holds forth for the record. According to Wittes, Comey, pre-firing, had "concerns" about Rod Rosenstein's likely confirmation by the Senate. "He said, 'I don't know. I have some concerns. He's good, he's solid but he's also a survivor and you don't survive that long without making some compromises and I'm concerned about that.'" Translation: "Anyone who might consider firing me is by definition compromised." What a hoot. Comey would know all about survival and compromise. He's a 17 year DOJ veteran, who left at one point to take a $6 million per year job at Lockheed. Rosenstein on the other hand, prior to becoming DAG, spent his entire career in public service without a hint of impropriety. His reputation for straight-shooting is impeccable. Notably, Schmidt nowhere mentions Wittes's recent and unhinged hit piece on Rod Rosenstein in Lawfare.

I have a slightly different interpretation of Comey's concerns. I would have been concerned too, had I been in his shoes. Comey had been widely and correctly condemned by a broad and impartial sector of the legal and law enforcement community for his improper interference in the political process--an interference that violated longstanding DOJ policies and usurped DOJ's prosecutorial role. But Loretta Lynch was too politically damaged to fire him and Sally Yates, as a lame duck, was too weak. Comey knew that Rosenstein had the integrity and the stature to pull it off. Meanwhile, also in classic fashion, the broadcast media parroted the NYT. Joe Scarborough on Friday morning's show breathlessly reported Comey's "concerns" as if Comey, yesterday's goat, is now the nation's ethical ombudsman. 

Whatever happened to the idea that a respected public servant can make a serious mistake, even one that justifies his or her firing, and still be judged an honorable person based on the whole of his or her career? I know numerous people within the FBI and DOJ who have worked with Comey and have enormous respect for his abilities and integrity. This doesn't mean that he is flawless or that his conduct during the election renders him untouchable. By all means, let's have a public airing of all of the circumstances surrounding Comey's firing, assuming that it can be done without compromising Mueller's work. There is little doubt of President's Trump motivations. But let's not conflate the impropriety of President Trump's motives with the improprieties catalogued in Rosenstein's Memo.

(wisenberg)

May 20, 2017 | Permalink | Comments (0)

Thursday, May 18, 2017

Another Major Corruption Scandal Hits Brazil

As I mentioned in a post a few weeks ago, the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program for the event is now available online.  What was already shaping up to be a fascinating conference will now be even more interesting with news breaking overnight of another major Brazilian corruption scandal.  

According to the New York Times, the Brazilian newspaper O Globo alleged overnight that a food company executive taped a conversation with Brazilian President Michel Temer in March that included discussions of "hush money" being paid to a jailed politician.  According to the the New York Times, President Temer is also alleged to have told the food company executive to pay a lawmaker in relation to a dispute at a company facility.  The President of Brazil issued a statement in response to the O Globo story denying the allegations, and the New York Times noted in its article that the paper had not yet independently confirmed the allegations. 

According to The Rio Times, the food company executive in question, Joesley Batista, told federal prosecutors about the conversation as part of his cooperation pursuant to a plea bargain.  Batista had been implicated in the Carwash corruption investigation in Brazil.  After news of the allegations broke, lawmakers from several political parties called for an investigation.  There were also calls for the President to resign.  According to The Rio Times, PSB national president Carlos Siqueira told local media, "The resignation of the President has become an imperative not to aggravate the crisis further.  The Temer government ended today." 

This latest alleged scandal comes at a time when Brazil is still reeling from the fallout of the Petrobras scandal, a case that led to the downfall of former Brazilian President Dilma Rousseff.  These latest developments will certainly be ones to watch as corruption allegations continue to plague the Brazilian government. 

(LED)

May 18, 2017 in Corruption, International, News | Permalink | Comments (0)

Hats Off to Rod Rosenstein

Co-blogger Sol Wisenberg (here) called for Rod Rosenstein to "Hunker down Rod. Your country needs you."  There are many who feared that the appointment of a special counsel would not be as neutral as Deputy Attorney General Rod Rosenstein.  The appointment of special counsel/prosecutor could also delay a current investigation - after all anyone new would have to get up to speed.  But the DAG outdid himself here in appointing former FBI Director Robert S. Mueller III. 

The real hero of the story still remains Deputy Attorney General Rod Rosenstein, and hopefully history will remember this.

(esp)

May 18, 2017 in News, Prosecutors | Permalink | Comments (0)

Monday, May 15, 2017

Saint Jim Had To Go: Rod Rosenstein Should Stay Put.

I imagine we will know more about Rod Rosenstein's Memo, and its timing in connection with FBI Director Comey's firing, later this week. Based on the publicly available information, it appears that that when Rosenstein met with the President last Monday he was asked for his views on Saint Jim. Rosenstein no doubt articulated his disapproval of Director Comey's appallingly improper conduct during the 2016 election, a disapproval shared by legions of current and former DOJ prosecutors and FBI Special Agents. He was asked to memorialize his thoughts in a memo, and given a quick turnaround time. If this is how it played out, there was nothing wrong with the President's question, nothing wrong with Rosenstein's answer, nothing wrong with the President's request for a memo, nothing wrong with Rosenstein's decision to obey the request, and nothing wrong with the resulting memo itself. Nothing at all. Comey's conduct, as Rosenstein's Memo makes clear, was a gross deviation from standard DOJ practices, a clear overstepping of authority, and an improper smearing of an American citizen who just happened to be a major political candidate. As devoted readers of this Blog no doubt remember, I detailed Director Comey's myriad shortcomings here just after the election. To make matters worse, Director Comey refused to acknowledge his mistakes and improprieties and continued to publicly justify his shocking behavior in increasingly bizarre fashion. Some have suggested that Rosenstein's Memo "reads like an op-ed" or is "deeply troubling." I expect this kind of nonsense from the political opposition and the resisters, but when I see it from former colleagues of Rosenstein it makes we want to puke. The President is Rosenstein's superior. He asked for Rosenstein's opinion. He asked for Rosenstein to memorialize his thoughts in writing on a fast timetable. Each of these was a reasonable request. Should Rosenstein have refused the request, protesting that he needed more time to prepare a memo? He didn't need more time to detail Comey's indiscretions. Any schoolboy or schoolgirl reasonably competent in Civics could have done so.

The problems arose with what happened next. When Rosenstein learned that the White House was disseminating a false version of events to the effect that Comey's firing was solely the result of Rosenstein's Memo, he is reported to have quickly complained to the White House Counsel that he did not want the facts massaged and would not be comfortable staying in an Administration where this was happening. Translation: "Tell the President's people to quit lying. Stop the phony stories now." And the phony stories stopped. Then the President, in his typical foot-in-mouth way, admitted that Comey's handling of, and public comments about, the Russia investigation played a part in the firing. Think about that for a moment. Because of Rosenstein's status and sterling reputation, a reputation much ballyhooed by the Trumpistas, the President's people were forced to instantly and embarrassingly change their false narrative, and the President stumbled into another unforced error. That would not have been possible if the DAG had been a hack or mere factotum. Of course, Rosenstein could have decided to resign. Instead he demanded the truth and got it. It is a judgment call and I don't blame him at all for making the call he did, two weeks into the job.

Make no mistake, there is going to be a thorough investigation of Russian Collusion, either within Main Justice or by a Special Counsel. There are many good reasons for keeping the investigation in-house, as Rosenstein should know having served (along with me) in an Independent Counsel's Office. There are great inefficiencies and delays involved in setting up and running a Special Counsel operation. In disputes between such an office and an uncooperative Executive Branch, who would you rather see the President opposing? A Special Counsel, who he can demonize, or his own DAG, who he has already praised as a man of impeccable integrity? The scarier President Trump gets, the more I need the people around him to be sound, sane, and steady professionals. I want to see people like McMaster, Mattis, and Rosenstein at their stations.

As a matter of public relations, the President's unforced error will make it more difficult for Rosenstein to resist the calls for a Special Counsel. If President Trump's inappropriate comments about the investigation pile up, more and more citizens will be prone to see any declination by the DAG as a whitewash or a cover-up. So keep talking Mr. President. The more you complain about the Russia Investigation, the likelier you are to get a Special Counsel for all of your efforts. Meanwhile, were I Rosenstein, I would react to every Presidential criticism of the investigation with a renewed determination to leave no stone unturned. Hunker down Rod. Your country needs you.

(wisenberg)

May 15, 2017 in Current Affairs, Government Reports, Investigations, Obstruction, Prosecutions, Prosecutors | Permalink | Comments (0)

Wednesday, May 3, 2017

ABA Criminal Justice Section Second Global White Collar Crime Institute

In 2015, I launched the Inaugural ABA Criminal Justice Section Global White Collar Crime Institute in Shanghai, China. It was an incredible success and brought together practitioners, government officials, judges, consultants, and academics to discuss some of the most important issues in the field.

I’m please to announce that the Second Global White Collar Crime Institute will be held in Sao Paulo, Brazil on June 7-8, 2017 at the Law Offices of Trench Rossi Watanabe. The program is now available online, and it is shaping up to be another spectacular event.

The program includes the following panels:

  • A Prosecutor’s View of Global White Collar Crime from Investigation to Sentencing
  • Navigating Cross Border Government Investigations and Prosecutions
  • Trends Regarding Global Anti-Corruption Enforcement
  • A View of Global White Collar Crime from the Bench
  • Preparing for the Globalization of Corporate Internal Investigations
  • Navigating Global Compliance Trends and global Enforcement Priorities

I hope you will be able to join me for this engaging and informative conference in one of the world’s most active white collar enforcement environments. Register here while space is still available.

(LED)

May 3, 2017 in Conferences, International | Permalink | Comments (0)

Monday, April 24, 2017

Preston L. Pugh Joins Miller & Chevalier

Attorney Preston Pugh joined Miller & Chevalier Chartered in the litigation Department. (see here). Preston "Pugh counsels and defends clients in complex civil and criminal litigation, internal investigations, and government investigations. His practice includes matters involving the U.S. Foreign Corrupt Practices Act (FCPA), the False Claims Act (FCA), government contracts, and corporate ethics and governance."  He participated als0 has been an instructor in the NACDL White Collar Criminal Defense College at Stetson.

(esp)

April 24, 2017 in Defense Counsel | Permalink | Comments (0)

Farha - Cert Denied

The Supreme Court denied cert this morning in Farha v. United States leaving the 11th Circuit decision (Clay) on mens rea standing. For prior discussion of this case see here.

(esp)

April 24, 2017 in Judicial Opinions | Permalink | Comments (0)

Thursday, April 6, 2017

Rosenzweig on Mike Flynn's Immunity Gambit

My old friend Paul "Bunky" Rosenzweig has written an informative primer on immunity from prosecution in the wake of news that former National Security Advisor Mike Flynn wants immunity, purportedly so that he can "tell all." Well, as my Dad used to say, "People in Hell want ice water." Here is Paul's piece from Lawfare. There was an initial assumption in many social media outlets that Flynn's quest for immunity signaled impending doom for the Trump Administration. How silly. If that's true, then why has President Trump stated that Flynn's request should be granted? Who wouldn't want transactional or derivative use immunity from Congress? If Flynn were to publicly testify after such a grant, future criminal prosecution of him would be virtually impossible. See Ollie North and Admiral Poindexter. So, if Flynn gets immunity from Congress it would either be a colossal act of Congressional stupidity or a scandal of world class proportions. Flynn appears to have very able white collar counsel, so look on this as a bold ruse. Why not at least try it? Regarding immunity granted by a DOJ letter or a federal district court order at DOJ's request, we've learned from the Clinton Espionage Investigation that even DOJ grants of immunity by the truckload don't guarantee a successful prosecution--of anybody. Bottom line: Assuming that DOJ has a case against Flynn he is unlikely to get immunity at all. He would instead get some kind of plea deal. In either circumstance, he would not get it absent an in person proffer. Regarding proffers, and how they should be viewed from the defense perspective, see my old article on proffers from Findlaw. Nothing much has changed since I wrote it. 

(wisenberg)

April 6, 2017 | Permalink | Comments (0)

Wednesday, March 29, 2017

Schock Team Alleges Massive DOJ Trashing of Speech and Debate Clause and Attorney-Client Privilege

Former Illinois Congressman Aaron Shock's attorneys filed two motions in federal court yesterday, alleging massive government misconduct in the investigation that led to their client's indictment on multiple misconduct and fraud related charges. The allegations center around the government's alleged use of one of then-Congressman Schock's junior staffers as a confidential informant who purportedly recorded conversations covered by the Speech and Debate Clause and the attorney-client privilege, and also stole various privileged materials. The government has apparently conceded that some of the informant's actions were improper and has promised not to use certain evidence he obtained, but if even half of Schock's allegations turn out to be true it will constitute a major embarrassment to DOJ. You look at the facts detailed in Schock's motions and have to be wondering what the government was thinking in using these kinds of tactics in the wake of the Jefferson case and Abramoff era investigations that brought Speech and Debate issues to the fore. There is also an allegation that government prosecutors gave incorrect legal advice to the grand jury. Schock wants more information about the government's use of the informant and access to additional grand jury materials. Here are the Schock Memorandum in Support of Motion for Discovery Regarding Use of Confidential Informant and the Schock Memorandum in Support of Motion for Discovery of Grand Jury Materials. Here is coverage from The Hill and the Washington Post. More to come as this case progresses. Schock is represented by George Terwillliger, Bob Bittman, Benjamin Hatch, Nicholas Lewis, and Christina Egan of McGuie Woods in DC and Chicago and by Jeffrey Lang of Lane & Waterman in Davenport, Iowa. The case is being prosecuted out of the Central District of Illinois.

(wisenberg)

March 29, 2017 | Permalink | Comments (0)

Sunday, March 12, 2017

More on the 46 U.S. Attorneys Asked to Resign

It is fairly typical that US Attorneys offer their resignations when a new President, especially one of a different party, is elected. But firings and requiring same-day resignations are less common.  This is particularly troublesome as many were finishing up work on current cases.  Of the 46 who had not left and asked for their resignations this week were a few that it is sad to see leaving their post.  I don't know all 46, but some that I do are mentioned below -

David Capp, U.S. Attorney Northern District of Indiana -  Attorney Capp had planned to retire in June 2017.  He issued a thoughtful statement here.  He thanks the "men and women of the USAO for their dedication and professionalism, day-in and day-out."  Thank you David for your dedication and professionalism.  In the statement issued he notes -

"Some years ago I spoke one evening at a church in Gary. We had just made some arrests and closed down a drug operation in the neighborhood the church served. Afterwards a gentleman came up to me, shook my hand, thanked me for our efforts and told me “now my grandchildren can play in the yard again.” That has always stuck with me and kept me focused on what our work is really about. I hope that I have played a part in making more yards in the Northern District of Indiana safe for “grandchildren to play in."

Others that were forced to resign include US Attorney Paul J. Fishman (statement here), whose office had prosecuted some of the Bridgegate cases (see here). And Preet Bhatara who was fired after refusing to resign (see here) had done some interesting prosecutions related to Conspiracy to work for Russian Intelligence (see here).

Attorney General Jeff Sessions has much work ahead trying to match the work done by individuals of this caliber.

Addendum -  Other statements regarding resignations -

District of Rhode Island - United States Attorney Peter F. Neronha Stepping Down

District of Minnesota - Statement From U.S. Attorney Andrew Luger

Eastern District of Arkansas - U.S. Attorney Christopher R. Thyer Announces Resignation

(esp)

March 12, 2017 in Prosecutors | Permalink | Comments (0)

Friday, March 10, 2017

Trump to 46 Prosecutors - Resign

The New York Times reports that "Trump Abruptly Orders 46 Obama-Era Prosecutors to Resign." Sad.

(esp)

March 10, 2017 in Prosecutors | Permalink | Comments (0)

ABA White Collar Crime Conference - Keynote Acting Assistant AG Criminal Division

Acting Assistant Attorney General Criminal Division Kenneth A. Blanco was the keynote speaker for the final morning's program of the ABA White Collar Crime Conference of 2017. He spoke about transnational and money laundering crimes and government prosecutions in this area. He emphasized the importance of international cooperation. He remarked that there has been an increase in multinational investigations and it is important to have strong relationships with our counterparts worldwide.

He used the word "global" 14 times, the word "international" 25 times, and "cooperation" 11 times.   International collaboration and cooperation were without doubt his theme.

He spoke briefly about the Fraud Section Pilot Program, stating:

"Before I conclude, I would be remiss if I did not comment on the Fraud Section’s “Pilot Program.”  Last year, the Fraud Section implemented a one-year “Pilot Program” for FCPA cases, to provide more transparency and consistency for our corporate resolutions.  The “Pilot Program” provides our prosecutors, companies and the public clear metrics for what constitutes voluntary self-disclosure, full cooperation and full remediation.  It also outlines the benefits that are accorded a voluntary self-disclosure of wrongdoing, full cooperation and remediation.  The one-year pilot period ends on April 5.  At that time, we will begin the process of evaluating the utility and efficacy of the “Pilot Program,” whether to extend it, and what revisions, if any, we should make to it.  The program will continue in full force until we reach a final decision on those issues."

He ended with the lyrics from a 1960s song from Martha and the Vandellas – "Nowhere to run baby, Nowhere to hide."  

A full copy of his talk can be found here.

(esp)

March 10, 2017 in Conferences | Permalink | Comments (0)

Thursday, March 9, 2017

ABA White Collar Crime Conference - Judges Speak

Hon. Paul L. Friedman moderated the  judges panel.  The judges on the panel were Hon. Gregg Costa,  Hon. Charles Breyer, Hon. Nannette Jolivette Brown, Hon. Amy J. St. Eve, Hon. Kathleen M. Williams, and Hon. Carlos Mendoza.

Does your life experiences influence your judging? The judges talked about sentencing.   

Hon. Carlos Mendoza spoke about how his diverse background has affected his sentencing. Hon. Amy J. St. Eve noted that judging is the most difficult thing that judges do.  Hon Charles Breyer noted that there is no such thing as a "right sentence,"  but there is something called a "wrong sentence."

Some pointers offered:

  • Sentencing memos are important 
  • "Educate us on your client"
  • "Know your judge" 
  • Some Judges may not want 3 or 7 pages of Booker, and then finally saying -now here is what you can do - "I already know that."
  • "Watch what your clients do" -Problems when the offender doesn't accept responsibility
  • Come up with a better argument then the folks at the country club don't talk to him any more
  • Not helpful when government just says - we want a sentence in the guidelines range   
  • If prosecutor and defense attorney agree on something (C1c), more inclined to do it

Deferred prosecution agreements were discussed as well as the managerial aspects of the judicial position.  The panelists offered many reflections in thenearly two hour discussion.  They also looked at high profile cases and whether they had any special procedures in these cases.  Justice Breyer said the less said, the better.  Hon. J. St. Eve said - "I don't read the coverage in a high profile case."  They skipped over discussing Brady, but did discuss technology.

One question was whether the judge allowed the defense counsel to see the probation officer's recommendation.  It was noted that the judges differed on whether the judge would allow counsel to see this.  

(esp)

March 9, 2017 | Permalink | Comments (0)

ABA White Collar Crime Conference - Alan Dershowitz

Alan M. Dershowitz, the morning speaker, started by telling how he missed teaching. The amount of perjury committed by defendants is small in comparison to the amount of lying by police officers. He talked about how some witnesses are told not only to sing, but to compose. He noted that perjury in civil cases is pervasive.  Perjury in civil cases, however, is seldom prosecuted.   He also noted that most perjury does not occur on direct examination, but rather on cross-examination. Also he noted that there are often lies in depositions. He ended by saying that we should not be tolerating perjury, and also that we should be focusing on perjury beyond defendant perjury. 

(esp)

March 9, 2017 in About This Blog | Permalink | Comments (0)

Wednesday, March 8, 2017

ABA White Collar Crime Conference - Title IX

This is the first time the ABA White Collar Crime Conference had a panel focused on "Due Process on Today's Campus: Handling IX Abuse and Harassment Cases."  Moderating this conference was Marcos Hasbun.  Panelists were Carolina Meta, Thomas C. Shanahan, and Hon. Nancy Gertner.  Many may think this is outside the scope of white collar criminal matters, but attorneys in the white collar area are often involved in the internal investigations for schools and criminal defense counsel can be called on in representation of clients - both individuals accused and victims.

Hon. Nancy Gertner noted that this was initially regulation guidance that was not issued with notice and comment.  It has had earth shattering consequences, as described by Hon Nancy Gertner. The preponderance of the evidence standard being used was noted. But unlike ordinary civil cases, you don't have discovery.  The panel discussed the "Dear Colleague" letter. She also noted the mandated procedures is how it has played out. Thomas Shanahan discussed the parallel proceedings that can occur with law enforcement and the university disciplinary proceeding.

It was noted that the university is under a mandate to move things along in 60 days. It was also noted that case lines are developing on two different tracks, including those arguing the denial of due process rights by the university.

Some argued that the process is focused on due process rights of the individuals making the accusation.  But it was also noted that some states, like North Carolina, permits counsel during the proceedings for the respondent.  It was noted it can be beneficial for counsel for the respondent to get the outside lawyer involved.

(esp)

March 8, 2017 in Defense Counsel, News, Prosecutions | Permalink | Comments (0)

ABA White Collar Conference - Pre-trial Practice in Federal Criminal Cases

One of the opening panels of the conference was a breakout on Pre-trial Practice in Federal Criminal Cases.  The panel included Hon. Cecilia Altonaga, Professor Ricardo Bascuas, Ryan O'Quinn, David Markus, and Vanessa Snyder.  The moderator was Andrew Feldman.  

The panel looked at motion filing, bail, and admission and exclusion of evidence as some of the topics for discussion.

From the prosecutor perspective Ms. Snyder emphasized the benefits of defense counsel calling prosecutors before filing motions.  "See if you can work it out."  It would lead to a more productive result, she stated.  She stated that then if it is necessary you can file the motion if you can't work it out.

Judge Altonaga emphasized having a plan when filing pre-trial motions. Is it getting you to your goal or are you alienating the court and prosecutor. Pre-trial motions can be used to educate the court. 

David Marcus spoke about the insignificant number of folks who skip on a bond and how the failure to give a bond proves detrimental to the system.  Judge Altonaga spoke about the risk of flight standard.  It helps if there are local ties, that is ties to the United States exist. 

Professor Bascuas noted the increased number of individuals in prison and the decreased number of trials. 

Ryan O'Quinn noted the long relationship that the prosecution and defense have prior to Indictment in white collar cases. 

The panelists also discussed the admission and exclusion of 404(b) evidence and motions in limine.

Audience questions turned the discussion in a different direction - Brady.   

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March 8, 2017 in About This Blog, Conferences | Permalink | Comments (0)

Monday, March 6, 2017

U.S. Attorney Wifredo A. Ferrer Joins Holland & Knight as Head of Global Compliance and Investigations Team

Holland & Knight has announced that Wifredo A. Ferrer, U.S. attorney for the Southern District of Florida, will join the firm as a partner in its Miami office. Mr. Ferrer will lead the firm's Global Compliance and Investigations Team, which focuses on corporate compliance and government investigations within the firm's White Collar Defense Practice.  Read more here.

(esp)

March 6, 2017 in Defense Counsel, Prosecutors | Permalink | Comments (0)