Tuesday, August 14, 2018
The NACDL recently released an important report detailing the impact of the trial penalty, which is the difference between the sentence a defendant receives in return for pleading guilty and the often much larger sentence he or she receives in return for exercising his or her constitutional right to trial.
From the NACDL press release:
The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial. To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system
This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident. The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems. The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.
The entire report is well worth reading. For those in the white collar field, I'll note that the report contains a specific section on economic crimes. This portion of the report focuses on Section 2B1.1 of the Federal Sentencing Guidelines. The report discusses the role of 2B1.1 and loss calculations in creating incentives for defendants to plead guilty. You can access the entire NACDL report here.
I found the NACDL report particularly interesting as I've engaged in much research on the issue of plea bargaining and sentencing differentials, including the impact of such incentives on innocent defendants. In one study, we found that 56% of innocent participants were willing to falsely confess guilt and "plead guilty" in return for a bargain. You can read more about those findings and the issue of plea bargaining's innocence issue here.
Saturday, July 28, 2018
Can we talk about the law here? Title 52 U.S.C. §30121, subsection (a), makes it unlawful, among other things, for "(1) a foreign national, directly or indirectly, to make...(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election." Section 30121 also makes it unlawful for a person to solicit, accept, or receive a contribution or donation described in subparagraph (A)...of paragraph (1) from a foreign national." If something is unlawful, it is against the law.
Clearly, if Donald John Trump, Donald Trump Jr. or anyone else associated with the Trump campaign knowingly solicited, accepted, or received money or a thing of value from a Russian national, that person has violated this provision of the Federal Election Campaign Act, as amended. And the same is true for Hillary Rodham Clinton and persons associated with her campaign.
But not every violation of law is a crime. To be guilty of criminally violating Section 30121 a person must do so knowingly and willfully. See 52 U.S.C. § 30109. In the context of the Federal Election Campaign Act, this means that an individual, to be guilty, must know that he is acting in violation of the law. In other words, here, as in certain other federal criminal statutes, ignorance of the law is an excuse.
In legally examining what we know about the infamous Trump Tower meeting of 2016, we should keep these realities in mind. I am speaking here of the meeting, and what led up to it, alone, and not what may or may not have later transpired. Based on what we currently know it seems extremely unlikely that any reasonable prosecutor could make a criminal case under the Federal Election Campaign Act against Donald Trump Jr. And that includes a case alleging any a conspiracy or attempt to willfully violate the statute. There just isn't enough.
Wednesday, July 25, 2018
For all of you Manafort junkies out there, here is Judge T.S. Ellis, III's July 24 2018 Order, resolving most of the outstanding prosecution and defense motions in limine in U.S. v. Manafort, due to be tried next week in Alexandria.
It is abundantly clear, based on these rulings and the charges in the EDVA Superseding Indictment, that this case will be presented to the jury by the government, as much as possible, as a relatively straightforward bank fraud, concocted by the defendant in order to hide the amount and source of improperly derived offshore income. Manafort and Rick Gates (now a cooperating witness) allegedly created phony loans from offshore nominee entities in order to conceal lobbying income derived from their work as unregistered agents on behalf of, among others, the Government of Ukraine and former Ukrainian President Victor Yanukovych. Later, when Yanukovych lost power and the money source dried up, Manafort and Gates allegedly inflated the value of Manafort's real estate holdings (and/or lied about the nature and use of said real estate) in order to obtain new loans and maintain a lavish lifestyle. The jury will hear and see evidence regarding Manafort's lavish lifestyle, his failure to register as a foreign agent, and his failure to disclose foreign bank accounts that he controlled. But the jury will not see or hear anything pertaining to the Trump campaign's purported collusion or interaction with Russia.
It is becoming fairly obvious to me that Mueller has no criminal collusion case to bring against the President or anyone in the President's entourage absent: 1) bombshell disclosures from Michael Cohen; 2) Manafort flipping after conviction; or 3) Manafort testifying through a post-conviction compelled immunity order issued by a federal court pursuant to 18 U.S.C. §§ 6002 and 6003. The Manafort case was never about Manafort. It was always about Trump. The law unquestionably allows Mueller to operate in this manner. It is what it is.
Tuesday, July 24, 2018
Today in Palmieri v. United States, the United States Court of Appeals for the D.C. Circuit upheld the dismissal of Matthew Palmieri's lawsuit challenging the revocation of his security clearance. It was a unanimous decision in a routine case. The lawsuit was ludicrous, claiming violations of practically every constitutional provision except the Third Amendment. Moreover, it is extremely difficult to challenge security clearance revocations under the Supreme Court's decisions in Department of the Navy v. Egan and Webster v. Doe. Nevertheless, the concurrence of Judge Gregory Katsas, a Trump appointee, is intriguing and timely, given President Trump's threats to revoke the security clearances of certain former intelligence chiefs. Judge Katsas seems to think it is an open question "whether Egan bars non-frivolous constitutional challenges to the denial or revocation of a security clearance." He did not believe that Palmieri's case was the proper vehicle to resolve the question, however, since there were abundant alternative grounds for upholding the district court's opinion. So, the resolution of this question will have to wait until another day, which could be quite soon if the President acts on his threats. Hat Tip to Paul Rosenzweig at Lawfare for noting the concurrence. See also Bradley Moss's outstanding Monday piece in the same publication, discussing the issue at length.
Monday, July 23, 2018
For all of you Manafort trial junkies, here is the Government Exhibit List, recently filed in U.S. v. Paul J. Manafort, Jr., set to start soon in U.S. District Judge T.S. Ellis, III's Alexandria courtroom.
Here also is Judge Ellis's Order Denying Paul Manafort's Motion for Change of Venue. Judge Ellis ruled last week that Manafort is not entitled to a presumption that any Alexandria federal trial jury would be partial to the government. If Manafort can establish actual prejudicial partiality through voir dire, a herculean task under current federal criminal law, Judge Ellis will revisit the issue.
Sunday, July 22, 2018
Not surprisingly, Politico's Josh Gerstein has authored a hit piece on Supreme Court nominee Brett Kavanaugh, with the catchy title "'Brett Was Involved': Inside Supreme Court nominee's work for Bill Clinton." In fact, the article tells very little about the breadth of Kavanaugh's work for the OIC, instead focusing on unsupported suggestions from partisan journalists (and Clinton sycophants) Jonathan Alter and Steve Brill that Kavanaugh (while working for Starr) may have violated Federal Rule of Criminal Procedure 6(e), which prohibits unauthorized disclosure of grand jury materials. That Gerstein would write such a piece of hack work is not surprising, given his history of shaping stories and quotes to fit a pre-conceived ideological spin.
A case in point is this May 2017 Gerstein hatchet job on Rod Rosenstein's three page memo--the memo used by the Trump Administration to justify the Jim Comey firing. (The May 2017 Gerstein piece was written before Rosenstein became the darling of the Morning Joe crowd by appointing Robert Mueller as Special Counsel.) Literally every person quoted in the May 2017 Gerstein article criticized Rosenstein's memo. No one defended it. Yet Gerstein had called me while he was working on the story and we spoke at length. I vigorously defended the reasoning and propriety of Rosenstein's memo, as well as Comey's firing. But you won't find any of those quotes in Gerstein's story. I'm confident that I was not the only source who defended Rosenstein's memo, the reasoning of which was vindicated by DOJ Inspector General Michael Horowitz's subsequent Report. As I pointed out here, four days after Gerstein's piece on Rosenstein, "legions of current and former DOJ prosecutors and FBI Special Agents" were appalled at Comey's public statements during the 2016 election. But Gerstein couldn't seem to locate or quote any of them.
With respect to the Alter-Brill suggestion/insinuation that Kavanaugh leaked grand jury information (and the typical call for a "thorough investigation"), it is pure, unadulterated hogwash. First, although Starr's OIC (where I served as Deputy Independent Counsel) was regularly accused of leaking grand jury information, a Special Master's investigation ordered by U.S. District Judge Norma Holloway Johnson, no fan of our office, cleared the OIC (and by implication all of our employees) of those charges. More importantly, to my knowledge, Kavanaugh himself was never in any way pegged as one of the supposed grand jury leakers. Kavanaugh did occasionally meet with members of the media, as he has always acknowledged, but there is nothing wrong with that per se. Special Prosecutor Archibald Cox regularly gave briefings on background to members of the press and both Cox and Special Prosecutor Leon Jaworski employed a press officer, Jim Doyle, who did the same. It was part of his job. Nobody has ever credibly suggested that Cox, Jaworski, or Doyle acted improperly in giving background briefings on non-privileged matters to the press. In addition, Kavanaugh, when running the Vince Foster investigation, apparently met with certain media figures who claimed to have evidence and information to impart about Foster's death. Kavanaugh would have been remiss in his duties, and accused of a cover-up, had he refused to meet with such sources.
So what is the evidence offered by Brill and Alter that Kavanaugh leaked grand jury information? According to Brill, “If what he did was not improper, why didn’t he do it on the record? The point is they all knew it violated rule 6(e). Brett was involved.” Really and truly, this is what Brill told Politico--this is his proof. Did Brill talk to Politico from a padded room? Keep in mind that Rule 6(e) violations are a crime. Where is your evidence, Mr. Brill? Put up or shut up.
What is Mr. Alter's proof? “Twenty years ago, I had indications that Kavanaugh was in contact with reporters and because it involves potential violation of federal law, those contacts need to be thoroughly explored in the confirmation process." Is an "indication" anything like a penumbra? Alter had "indications" 20 years ago that Kavanaugh had contact with reporters. Why does contact with reporters involve a potential violation of federal law? After all, it is a potential violation of federal law every time I file a tax return or fill out a government form. What is your proof, Mr. Alter? What precise "indication" did you have that anything Kavanaugh may have said or done constituted a violation of federal law or was improper in any way? Put up or shut up.
There are other problems with Gerstein's hit piece. For example, he writes that "Starr infamously took an expansive view of permissible contact with the media, allowing discussions about issues related to the ongoing investigation — disclosures that other prosecutors view as improper or ill-advised." How about some details Mr. Gerstein? What exactly are you talking about? Starr's position that prosecutors were allowed to publicly comment on the investigation in order to rebut false accusations by investigatory targets was part of the U.S. Attorney's manual at the time and had been endorsed in the past by then Deputy Attorney General Eric Holder. Starr's view of what constitutes 6(e) material was later confirmed by the U.S. Court of Appeals for the D.C. Circuit in a 1999 opinion (In Re Sealed Case).
Of course, it is perfectly proper to question Judge Kavanaugh on this topic, and his detailed response to the Senate Judiciary Committee's questionnaire already touches upon his contacts over the years with members of the press. The Senate is free to have at it. But these particular accusations are a joke, and Gerstein's attempt to turn them into a news story is absurd. Politico should be embarrassed.
Friday, July 13, 2018
Special Counsel Robert Mueller's Office has clearly been working to get to the bottom of the alleged Russian interference with U.S. elections. Today a D.C. federal grand jury handed down an Indictment against "12 Russian nationals for their alleged roles in computer hacking conspiracies aimed at interfering in the 2016 U.S. elections." The special counsel's website notes that "the indictment charges 11 of the defendants with conspiracy to commit computer crimes, eight counts of aggravated identity theft, and conspiracy to launder money. Two defendants are charged with a separate conspiracy to commit computer crimes." The Indictment is here.
There are some interesting lines in the Indictment including: "The Conspirators, posing as Guccifer 2.0, also shared stolen documents with certain individuals." It states,
"On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, received a request for stolen documents from a candidate for the U.S. Congress. The Conspirators responded using the Guccifer 2.0 persona and sent the candidate stolen documents related to the candidate's opponent."
The indictment speaks about how "[t]he conspirators, posing as Guccifer 2.0, also communicated with U.S. persons about the release of stolen documents." It notes how the conspirators "wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump ..."
The Indictment states that "[i]n order to expand their interference in the 2016 U.S. presidential election, the Conspirators transferred many of the documents they stole from the DNC and the chairman of the Clinton Campaign to Organization 1."
One thing is clear in reading this indictment - Mueller is running a legitimate and important investigation and it needs to continue.
Tuesday, June 26, 2018
All is quiet on the white collar crime front for the 2018 Supreme Court Term. But there are likely a good many more grants to come. And of course one never knows when a civil case will have implications in the criminal sphere. Global Tech (2011), a patent infringement case, ended up being at the forefront of many white collar cases as it examined the concept of willful blindness. Lorenzo v. Securities and Exchange Commission may have some implications in the white collar world as the Court examines "whether a misstatement claim that does not meet the elements set for in Janus Capital Group, Inc. v. First Derivative Traders can be repackaged and pursued as a fraudulent-scheme claim.." (see Scotus Blog here).
But there is one other case that white collar attorneys may want to follow - Timbs v. Indiana, which looks at "[w]hether the Eighth Amendment's excessive fines clause is incorporated against the states under the Fourteenth Amendment. (see Scotus Blog here). Although this deals with a state issue and addresses the issue from a drug-related perspective, it does examine whether the excessive fines clause gets incorporated to the states via the 14th Amendment. The incorporation/selective-incorporation debate has deep roots in Supreme Court jurisprudence with some of the finest jurists debating the extent that Bill of Rights provisions get incorporated to the States. There are few provisions remaining in the Bill of Rights that have not been incorporated and one is the excessive fines clause. Maybe this Court will take the few remaining unincorporated provisions (e.g., grand jury presentment) and say lets move ahead and start giving everyone the basic rights provided in the federal system; or perhaps they will just grant this one and wait another few decades to consider the remaining unincorporated provisions. In the area of excessive fines, the heaviest burden of not incorporating this provision likely lies outside the white collar context, but that may be all the more reason to consider this case.
Monday, June 18, 2018
If Congressman Trey Gowdy is to be believed, and I see no reason not to believe him, this should be an interesting week in Washington. According to Gowdy, Speaker Paul Ryan read the riot act to the DOJ and FBI on Friday night about the Bureau's stonewalling and foot dragging in the face of longstanding subpoenas issued by the House Judiciary and Intelligence Committees. If the subpoenas are not complied with, Gowdy warned that the full constitutional powers of the House will be employed by week's end. It is clear that Gowdy was not just talking about holding people in contempt. Gowdy's comments are significant, because he has been one of the few House Republicans to consistently support the work of Bob Mueller and to give the benefit of the doubt to the Bureau regarding the origins of the Russian investigation. This has often put him on the outs with the many Trump shills on the GOP side. What apparently pushed Gowdy over the edge was the Horowitz Report's revelation of Peter Strzok's text response to Lisa Page that "we'll stop" Trump from being elected President. Astonishingly, it appears that this text had not been provided to the House prior to the release of the Horowitz Report. I suspect as well that Gowdy was enraged to read in the Report that the Bureau, with the active involvement of Deputy Director McCabe, sat on its knowledge of the Weiner laptop materials, even keeping it from the DOJ prosecutors who had been involved in the Clinton email server investigation (dubbed "Midyear Exam"), until alarmed officials in the SDNY U.S. Attorney's Office tipped off an attorney at Main Justice. It is clear that at the time Strzok was leading and ramping up the Russia investigation, he and a large group of DC FBI officials were suppressing the discovery of 347,000 potentially relevant emails on Weiner's laptop. This is why even the rather tame Horowitz Report "did not have confidence that Strzok's decision to prioritize the Russia investigation over following up on the Midyear-related investigative lead discovered on the Weiner laptop was free from bias." But make no mistake about it, Strzok did not act alone. As many as 39 FBI officials were likely to have participated in a September 28, 2016 secure video teleconference (SVTC) in which the discovery of 141,000 emails potentially relevant to Midyear Exam was discussed. (McCabe was informed of the 347,000 figure later that evening.) This was an FBI conspiracy of silence. The irony is that the FBI's attempt to suppress the Weiner emails almost certainly aided Trump's electoral victory. If the emails had been processed in a timely fashion, without publicity, their ultimate irrelevance would have been established prior to the election and Comey would not have needed to make the damaging announcement that he was reopening the Midyear investigation. It will be doubly ironic if there were wholly legitimate reasons to open the Russia investigation, but the FBI's misguided efforts to hide its own mistakes ends up tainting and derailing the entire project. Byron York reports here on the growing House GOP suspicion that the FBI is hiding even bigger bombshells.
Thursday, June 14, 2018
Analysis to follow in a while.
Here also is the Press Release and Executive Summary of OIG Report.
Monday, June 11, 2018
Here is the Indictment returned late last week in U.S. v. James Wolfe. Wolfe worked for 30 years for the United States Senate Select Committee on Intelligence ("SSCI") handling top secret and other classified information provided by the Executive Branch to Congress. According to the Indictment, Wolfe leaked the identity of "Male-1" to at least two reporters on two separate occasions and then lied about it to FBI Special Agents. Male-1 is none other than Carter Page and it is clear that the leaks were intended to damage Donald Trump. Reporter #2, referenced in the Indictment, is New York Times reporter Ali Watkins who was romantically involved with Wolfe for almost four years. Records of Watkins' email and phone contacts (but apparently not their contents) were subpoenaed from third party providers. Andrew McCarthy of NRO Online has commentary here, while Alex Pappas of Fox News examines some of Ms. Watkins' embarrassing historical tweets concerning the identity of leakers and the propriety of sleeping with sources. The press and certain members of Congress are concerned, as well they should be, about DOJ's capture of journalistic records. But keep in mind that the press is not the only institution with a watchdog role. The SSCI performs that function as well, and does so officially, with respect to intelligence-related oversight, and it is ironic (in a bad way) that its Chief of Security, if the charges are accurate, betrayed SSCI's trust. At this point Wolfe has only been charged, under 18 U.S.C. Section 1001 (the Martha Stewart statute) with lying to the FBI.
Friday, June 8, 2018
Special Counsel Mueller added two counts to Paul J. Manafort Jr.'s Indictment and charged Konstantin Kilimnik with these same two counts (Counts 6 and 7) - (see Third Superseding Indictment here). The new counts and new charges allege Obstruction of Justice (Count 6) and Conspiracy to Obstruct Justice (Count 7). Both of these alleged offenses come from the same statute - 18 U.S.C. 1512, with the conspiracy using subsection (k) of section 1512.
The charges are intriguing in that the special counsel elected not to charge using the general conspiracy statute, section 371, a statute he did use in count 1 against Manafort. The use of the conspiracy provision within a substantive offense is charged in count 2 (conspiracy to launder money), but here there is no charge of money laundering against Manafort.
So basically you have one conspiracy to defraud charge, two conspiracy charges coming from specific offenses but not charged under the specific offense provision of the general conspiracy statute, and one of the conspiracy charges coming from the same statute as the specific offense that is charged.
So some questions to ponder:
- did the special counsel only want one conspiracy charge under 371 and did not want to combine the specific acts?
- did the special counsel not want to confuse the conspiracy to defraud the government charge with specific offense charges?
- did the special counsel want to leave more room to split the charges if one of the two people now charged decides to cooperate?
There are probably some out there who will argue that this is all to get cooperation. And whether that is true is not the question being asked here. Special Counsel Mueller has a professional and skilled team and learning their thoughts on why things were charged in a certain way will hopefully be a talk he gives years from now to some bar association. In the interim, please continue to work as diligently as you have been.
Monday, May 28, 2018
Guest Blogger - Josh Greenberg
Biggest-Ever Health Care Fraud Case Jeopardized By Prosecutors’ Failure To Implement A Taint Team After Seizing Documents From Defendant’s Personal Attorney, In Contrast To The Practices Advocated By Their Counterparts (And The President!) In The Analogous Case Of The Search Of The Office Of Michael Cohen
In the summer of 2016, Philip Esformes was indicted in the U.S. District Court for the Southern District of Florida for what the government describes as the biggest health care fraud case in U.S. history. The indictment alleges that Mr. Esformes ran a network of skilled nursing facilities and assisted living facilities that defrauded Medicare and Medicaid of $1 billion. Remarkably, after Mr. Esformes was indicted, the government did not create a taint team to review privileged documents seized from the office of one of his attorneys. The prosecution is in jeopardy as a result.
On the same day the indictment was filed, the prosecution team applied for a warrant to search an assisted living facility named in the indictment. Several cooperating witnesses had informed the prosecution team that Mr. Esformes’s personal attorney maintained his law office at that facility and did legal work for Mr. Esformes on matters relating to the allegations in the indictment. The application for the warrant did not disclose these facts. Moreover, the U.S. Attorney’s Manual imposes strict conditions on applications for warrants to search the offices of an attorney who, as with Mr. Esformes’s personal attorney, is a subject of an investigation. Before applying for such a warrant, federal prosecutors must both obtain “the express approval of the United States Attorney or pertinent Assistant Attorney General” and “consult with the Criminal Division.” The prosecutors in Mr. Esformes’s case, who are based in D.C., evidently did neither.
A magistrate judge issued the warrant without being told that the facility to be searched included an attorney’s office. One day after the indictment was filed, agents executed the warrant and seized over 170,000 pages of documents – including many privileged documents, a number of which addressed matters relating to the allegations in the indictment. By this point, even though Mr. Esformes’s Sixth Amendment right to counsel had attached, no taint attorney was assigned to the search. Instead, one of the agents was tasked with taking the lead in identifying and segregating potentially privileged documents. But the agent was not given the information needed to do so, such as the names of the attorneys and law firms defending Mr. Esformes. Of the documents the agents seized, only ten were put in a box marked “Taint.” The rest were put in 69 boxes – one of which was labeled “Carlton Fields,” the name of the law firm then defending Mr. Esformes – and given to the prosecutors. In addition, agents who executed the warrant remained or later became part of the prosecution team.
During the search, Marissel Descalzo, one of the attorneys from Carlton Fields, informed agents at the scene orally – and the lead prosecutor via email – that Mr. Esformes’s personal attorney represented Mr. Esformes, that the agents were seizing privileged materials, and that Mr. Esformes objected to these seizures. Whereas the lead prosecutor assured Ms. Descalzo that a taint team was in place, the same prosecutor began reviewing privileged documents in the 69 boxes on the next business day. The documents the lead prosecutor reviewed included notes and spreadsheets prepared at Ms. Descalzo’s request by a legal assistant for Mr. Esformes’s personal attorney. Later, despite learning that the notes and spreadsheets were privileged, the lead prosecutor, another prosecutor, and case agents from several different agencies questioned the legal assistant about those documents and learned the defense strategies reflected therein. The prosecutors decided not to notify either Mr. Esformes or the court of their review of the privileged documents or their interrogation of the legal assistant.
In April 2017, Mr. Esformes’s defense team – Roy Black, Howard Srebnick, and Jackie Perczek of Black Srebnick Kornspan & Stumpf and Ms. Descalzo, now of Tache, Bronis, Christianson and Descalzo – moved to dismiss the indictment or disqualify the prosecution team. A lengthy evidentiary hearing ended earlier this year and the motions are fully briefed.
The prosecution team’s approach in Mr. Esformes’s case stands in sharp contrast to the positions taken by the U.S. Attorney’s Office for the Southern District of New York (the “USAO-SDNY”) and by President Donald Trump in the case of Michael Cohen, the President’s personal attorney. Following the search of Mr. Cohen’s office, before any law enforcement official reviewed a single seized document, the USAO-SDNY sought the court’s permission to implement a “rigorous” taint team protocol, as is “common practice in th[at] District,” after Mr. Cohen sought a temporary restraining order. (This protocol is also the norm in other districts, including the Southern District of Florida.) Under the protocol, attorneys walled off from the prosecution team identify potentially privileged documents and “confer with counsel for the privilege holder” before sharing such documents with the prosecution team. To the extent that the privilege holder’s counsel objects, the taint team seeks a judicial determination as to privilege by submitting the documents under seal so that each side can present its arguments. A narrow exception allows ex parte review in “extraordinary cases” if “absolutely necessary,” such as where explaining the government’s position “would jeopardize a covert aspect of [an] investigation.” (Even under that exception, the privilege holder still receives judicial review. Mr. Esformes received no protection whatsoever.)
President Trump objected to a taint team, insisting that attorneys from the same office prosecuting Mr. Cohen cannot be trusted to decide which documents are potentially privileged and cannot fairly make such decisions. President Trump sought far greater protections, contending that his attorneys should decide which documents relating to him are withheld on the basis of privilege from the prosecution team. Ultimately, the court ruled that the USAO-SDNYs position was correct as a matter of law, but that it would appoint a former judge as a special master to avoid even an arguable appearance of bias given the politically charged nature of the case.
In Mr. Cohen’s case, recognizing the importance of protecting the attorney-client privilege even before an indictment, the USAO-SDNY sought to follow accepted taint team procedures rather than risk disqualification or dismissal in a potential future prosecution. The prosecution team in Mr. Esformes’s case, however, did not take such prophylactic measures when searching his personal attorney’s office after Mr. Esformes was indicted. Even if due to mere negligence, such exposure to privileged information – the very harm that a proper taint team prevents – cannot be undone. It is difficult to see how Mr. Esformes could have a fair trial against a prosecution team that learned his defense strategies long in advance. Courts have disqualified prosecutors who even inadvertently encountered far less significant privileged information. Insofar as the prosecutors recklessly or deliberately reviewed privileged materials that reveal his trial strategy, Mr. Esformes may also have a strong argument that his case should be dismissed. In the Eleventh Circuit, dismissing an indictment is appropriate where a Sixth Amendment violation caused “demonstrable prejudice.” United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir. 1987). That standard may be met when a post-indictment failure to establish a taint team results in prosecutors, and perhaps their supervisors as well, obtaining particularly sensitive privileged information without any judicial review.
Thursday, May 24, 2018
If you are in Washington, DC, and practice white collar criminal defense, you have probably seen an uptick in representing individuals related to ongoing investigations from the Special Counsel's Office. But outside of the city, and actual cases, white collar criminal defense is way down. So if you are not getting the cases - it is not you.
According to TRAC Reports (here), white collar cases are down 40.8 % from 1998, and 31.3% from 2008. Looking just five years ago, it is down 33.5%. Looking at the lead charge in the cases being brought, wire fraud (section 1343) comes in as number one. And if you are in the Southern District of New York or Southern District of Florida, the number of cases is higher in these areas than in other parts of the country.
One caveat here - These numbers may not accurately represent white collar cases being brought, as many white collar matters may be brought under "shortcut offenses" such as obstruction of justice, false statements, or perjury and may not accurately be reflected in white collar numbers (see here). Also the use of RICO can skew these numbers as it may not be reported as a white collar offense even though the predicate acts are fraud related.(see here)
(esp)(w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports).
Sunday, May 20, 2018
Congratulations to my old friend and colleague William T. Reid IV (aka Bill Reid) of Reid Collins & Tsai (see Bill's bio here) who recently won a complete acquittal for his client Olga Hernandez in San Antonio federal court. Hernandez, a longtime San Antonio Independent School District ("SAISD") Trustee, had been charged with conspiracy to commit honest services wire fraud and conspiracy to violate 18 U.S.C. 666--the infamous mark of the beast statute. The case was brought by the U.S. Attorney's Office for the Western District of Texas, which happens to be my old district and Bill's as well. The government maintained that Hernandez received an excessive and inappropriate amount of travel and entertainment ("T&E") from several people involved in insurance bid rigging. Its theory was that these bid riggers in essence bought Ms. Hernandez’s vote through the excessive T&E. The government, as is par for the course, offered 5K1.1 deals to the alleged co- conspirators in exchange for their testimony against Olga Hernandez. There was ample proof of the gifts and each of the alleged co-conspirators testified against Hernandez.
The defense theory of the case was that Ms. Hernandez was in fact friends with the conspirators and their wives. She accepted substantial gifts of T&E from the conspirators, but she did so out of friendship. With respect to the rewarding of insurance contracts by SAISD, Hernandez simply voted (along with all other trustees) consistent with staff recommendations by SAISD's Risk Management director. Olga had no idea that bribes were being paid and never got involved in the RFP Process that led to the various insurance contracts in question.
As often happens in honest services cases, the government relied heavily on Olga's purported violation of SAISD's conflict of interest/gift disclosure policy. Although violation of such policies is not in itself a crime, the government loves to merge or bootstrap such violations into the charged offense. The argument goes like this: "If the defendant is really innocent, why didn't she disclose these gifts in accordance with the school district's policy?" But the prosecutors had a problem in Olga's case.
According to Reid, "the biggest mistake the government made was using the wrong, inapplicable gift/conflict policy (that post-dated the conduct in question) to argue that Olga’s failure to disclose the T&E was evidence of her culpability. When, though a great deal of effort, we located the truly applicable policy we were able to prove that none of the gifts required disclosure. The government looked stupid. "
Reid now a high-end, high-stakes civil attorney who splits his time between Austin and Manhattan had not tried a criminal case since he left the U.S. Attorney's Office in 2000. Perhaps the most impressive thing about Bill's victory is that he took and tried the case pro bono, as a favor to his old friend (and mine), legendary San Antonio criminal defense attorney Alan Brown. (See Alan's bio here.) Bill tried the case with his partner Brandon Lewis and with Alan.
He told me that the case, "was by far the most rewarding case of my career. We were successful in defending Olga because of the hard work that our team put in to understand the evidence and hold the government accountable for trying to use the wrong gift disclosure policy. We also, explored the details of the process that led to the insurance contracts in question very closely so that we could demonstrate how minimally involved Olga was and thereby break the connection between gifts and any official act. This case was a stark example of how the government can obtain a wrongful conviction if defense counsel does not do his or her homework. "
Reid's Closing Argument, which focused on confirmation bias, was outstanding. Here are some additional stories on the case from the San Antonio Express-News, Law Dragon, and the Rivard Report.
Wednesday, May 16, 2018
Judge Amy Berman Jackson's Memorandum Opinion and Order gives a green light to Special Counsel Robert S. Mueller III proceeding with the case against Paul J. Manafort, Jr. (see here and here). Her straightforward Order dissects the authority provided to the Special Counsel and rejects Manfort's claims that this was beyond the Special Counsel's appointment and if not, that he overstepped his appointment. Taking the allegations in the Indictment, she demonstrates how the Supereding Indictment clearly falls within the realm allowed of the Special Counsel. One interesting side note in this Order is the discussion of the role of internal agency regulations. She states, "internal agency regulations do not create rights that an individual under investigation may enforce in court." Judge Jackson, while allowing this case to proceed, does include an important point that should be noted when reviewing documents of anyone accused of crimes. She states that, "[i]t bears emphasizing at this stage that Manafort is presumed to be innocent of these charges, and it will be the prosecution's burden to prove him guilty beyond a reasonable doubt." But the bottom line is that Special Counsel Mueller may continue, as he should.
Saturday, May 12, 2018
Here is Jonathan Turley's latest column for The Hill discussing the emerging "legal strategy" of Team Trump. It is clear that the hiring of Rudy Giuliani and Emmet Flood was part of a concerted effort to smear Team Mueller while preparing the public for Trump's invocation of Executive Privilege and/or his Fifth Amendment Privilege against self-incrimination. The new strategy buys time and kills two birds with one stone--both avoiding a Trump interview and allowing a sustained and withering attack to weaken Mueller. Like so much of the Trump approach, it uses the Clinton Playbook, the one employed by President Clinton at the urging of Dick Morris. Deny, delay, attack, weaken. Of course, Trump and his surrogates have been going after Mueller for awhile, but drafting Giuliani, a presumed legal heavyweight, was supposed to add stature, heft, and gravitas to the project. The problem was in the execution. It turns out Rudy Giuliani should change his name to Rusty Giuliani. He is rusty on the facts of his client's case, rusty on the law, and rusty on the ethical duties of an attorney. Virtually every one of his appearances has been marked by inaccuracies (factual and legal) and buffoonery. Rudy seems to be running on fumes and celebrity status. Here are just a few samples of his deft touch:
Mueller, the FBI, and the DOJ respect him, even though they are running a "garbage investigation" using "storm trooper tactics." (Do you think they still respect you?)
Presidential immunity from indictments and subpoenas was written right into the Constitution by the Framers. (This must be the long lost Alexander Hamilton Invisible Ink draft.)
There is definitely no campaign finance violation, because Trump reimbursed Cohen from personal funds. (The purpose of the payment, among other factors, must also be examined.)
Clinton was only questioned by Team Starr for 2.5 hours. (It was 4 hours. Not a huge point perhaps, but Rudy still had it wrong a week later. Does he have a researcher?)
Judge Ellis criticized the search of Michael Cohen's office. (Ellis did not mention the search at all.)
The President knew about the payments to Stormy Daniels. The President didn't know. I was talking about myself. I'm still learning the facts. Maybe I shouldn't be discussing privileged conversations I had with my client.
I make payments for my clients all the time without them knowing about it. (This presumably caused Greenberg Traurig to sever its relationship with Giuliani at the end of the week, with the law firm publicly denying that it engages in such conduct.)
The most disheartening thing about Rudy's performance has been his apparent refusal to sit down, learn the case, and refresh himself on the law.
Whatever the Grand Plan was supposed to be in wheeling Giuliani out, there is no Grand Plan involved in his performance to date.
Friday, May 11, 2018
Perhaps one of the most confused areas of the law is the Hobbs Act/Bribery area. Cases throughout the years have defined the need for a quid pro quo (McCormick), and noted how a passive acceptance can satisfy that prong of the statute (Evans). But when do you have a quid pro quo, is something that can often be a difficult factual question. Equally confusing is determining what constitutes an "official act." The Supreme Court in McDonnell held that "setting up a meeting, hosting an event, or making a phone call 'standing alone' would not be sufficient . . ."
In the first trial Sheldon Silver, former Speaker of the NY State Assembly, along with Dean Skelos, a former majority leader in the State Senate, both were convicted. But the convictions were quickly overturned because they failed to comply with the McDonnell pre-requisites. And now, according to the NYTimes, Silver was convicted on retrial. (Benjamin Weiser, Sheldon Silver Is Convicted in 2nd Corruption Trial).
For those who doubted the government's ability to prosecute public corruption cases post-McDonnell, this verdict should be very welcomed. For those who are seeking clearer lines between legal moneys paid and illegality, an appeal in this case may provide more answers. I keep wondering if the answer will all come down to "green."
Thursday, May 10, 2018
In June 2017, AG Sessions ended payments to third parties as a condition of settlement. (see here). In one document, the Attorney General made it difficult for companies entering into deferred prosecution and non-prosecution agreements, as well as plea agreements, to provide as part of their corporate settlement, payments to outsiders who could benefit from the corporate wrongdoing. It was good that agreements such as the agreement signed by former US Attorney Chris Christie would no longer allow the endowment of an ethics chair to a law school attended by Christie. But it was not so good to see that it might now be difficult for environmental-related groups to receive funding as part of an agreement following an oil spill. AG Sessions said 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." His memo put an end to this third party payment practice.
Now we have more changes, issued in a new policy of May 9, 2018. Deputy Attorney General Rod Rosenstein calls for "coordination of corporate resolution penalties." (see here). The policy states that "[i]n reaching corporate resolutions, the Department should consider the totality of the fines, penalties, and/or forfeiture imposed by all Department components as well as other law enforcement agencies and regulators in an effort to achieve an equitable result." So what does this mean? Here are some thoughts -
- Corporate investors, directors, and officers should be drinking champagne to toast this policy change. Having a coordinated payment will lift the multiple agencies and parallel proceeding payments that currently exists.
- Some agencies, uncertain which ones right now, should be getting nervous as they may be shrinking when there are less "results" to show for their investigations.
- If there is coordination, will it mean that the company will pay less to the government? This will be difficult to measure, but statistics may assist somewhat here as we have a measure of past amounts paid and can compare it with future amounts, factoring in inflation.
- Larger conference rooms may be needed at the Justice Department so that all the players can be in the same room as they try to coordinate global settlements with all applicable agencies, including state and international partners.
- Centralization of actions against companies certainly benefits the company, but is this policy really streamlining the process or is it just placing a tighter control over agencies by main justice.
- And who will be the arbitrator when the agencies cannot reach an agreement on the settlement?
- Will this mean less billable hours for some law firms, and which ones - the criminal defense attorneys or agency related attorneys? Should this be factored in, or is nothing more than a third party payment?
- From a fairness perspective this policy does have some beneficial components.
Perhaps the most bothersome aspect of this policy is that there is a lumping together here of civil and criminal resolutions. What if a corporation has not paid the appropriate tax, but has not done this with a criminal intent. If the government is not convinced of this and wants to prosecute criminally and the IRS has a civil action, how will this get resolved? You may now wind up not resolving the matter civilly, because the corporation may wish to challenge the possible criminal penalties. Or is the government just assuming in a post-Arthur Andersen world, companies would never dare to challenge the government for fear of the collateral consequences (e.g. bankruptcy). Clearly, the policy is aiming to secure greater cooperation from the company, but have they failed to factor in the innocent company that may wish to challenge claims of criminality?
Deputy Attorney General Rod Rosenstein's explanation of this policy in his remarks to the NYC Bar White Collar Crime Institute, includes a sports reference of "piling on," noting that this new policy will provide greater "fairness." Although I am not a fan of using sports analogies, one should praise the DOJ for this new policy. If the concern, as stated by Rosenstein, is to consider "the impact on innocent employees, customers, and investors who seek to resolve problems and move on," the applause definitely go to Deputy AG Rosenstein for recognizing the collateral consequences inherent in white collar prosecutions of entities. And finally, I agree with DAG Rosenstein's statement in his speech that "[m]ost American companies are serious about engaging in lawful business practices. They want to do the right thing. They need and deserve our support to help protect them from criminals who seek unfair advantages." So overall, this policy appears to be a move in the correct direction.
DAG Rosenstein says that to "promote consistency" they have established a "new Working Group on Corporate Enforcement and Accountability within the Justice Department." The group includes government representatives from a variety of places, who "will make internal recommendations about white collar crime, corporate compliance, and related issues." But I call on DAG Rosenstein to make this working group more representative, like including defense counsel, corporate monitors, corporate officers, and educators as part of the discussion. Maybe having everyone at the table will assist in finding the best way to curtail corporate misconduct.
Addendum - See also Sue Reisinger, Champagne Anyone? Celebrating an End to "Piling On" White Collar Enforcement