Friday, May 27, 2005
This seems to be a week of trials ending and jury deliberations beginning, or about to begin. Of course there is the Scrushy jury that has been deliberating for several days (see here).
Jury deliberations have also just started in the case against David Rosen, who is facing two counts of false statements to the Federal Election Commission (FEC). In this case the government's case emanates from a fundraiser for a US Senator (see here and here).
Finally the jury in the Kozlowski-Swartz trial is very close to deliberations, with final arguments underway. (see here)
Thursday, May 26, 2005
The jury, unable to reach an agreement on the conspiracy count, has asked the judge whether they should move onto other counts. (see WSJ here and Birmingham News here). One feels their frustration in that according to these news reports they are asking the judge for a one word answer - yes or no. We tell law students to think in terms of arguments, not answers, but the reality is that people in the real world want answers.
Addendum - Birmingham News reports here that the judge did give a "yes" answer, but also "read a one-page written answer to jurors."
Gwinnett County (Georgia) Prosecutor Danny Porter has decided to proceed with two counts against the runaway bride. (see Atl. Jrl Const. here) Although I have not been able to secure a copy of the indictment as of yet, according to the Atl. Jrl Constitution, the two charges are: "one felony count of making false statements and one misdemeanor count of falsely reporting a crime." If a plea is not worked out here, it is likely that there will be legal issues regarding jurisdiction and as to whether there is evidence of one of the elements in the statute. Obviously the defense may have other legal issues to present.
For example, the misdemeanor of falsely reporting a crime in Georgia is found in 16-10-26. The statute states, " A person who willfully and knowingly gives or causes a false report of a crime to be given to any law enforcement officer or agency of this state is guilty of a misdemeanor."(emphasis added). Did the accused give a false statement to someone in law enforcement of this state? The answer to this question remains to be seen.
New York Attorney General Eliot Spitzer and state Superintendent of Insurance Howard Mills filed a civil suit alleging fraud, violation of the state securities law (Martin Act), and violation of the state Insurance law against American International Group, former CEO Maurice Greenberg, and former CFO Howard Smith (summons & complaint here). The suit had been widely anticipated, and it contains no new allegations that have not already been aired in the press and discussed by the company as part of its internal investigation. A press release issued by Spitzer's office (here) summarized the allegations involving AIG:
- Engaged in sham transactions with a reinsurance company to create the appearance of insurance reserves where none existed. These deals were personally conceived and negotiated by Greenberg;
- Hid underwriting losses from an auto warranty unit by transferring the losses to an off-shore entity that it secretly controlled; Papered over losses in a Brazilian subsidiary by linking the losses to a Taiwanese subsidiary;
- Created false underwriting income derived from the purchase of life insurance policies; and
- Repeatedly deceived state regulators about AIG’s ties to off-shore entities.
The suit also cites a separate scheme in which AIG improperly booked worker’s compensation premiums as general liability and other coverage. This misconduct reduced the company’s taxes and other assessments.
No word on the status of the criminal investigations by Spitzer's office (see earlier post here) and the Department of Justice. The SEC usually coordinates its civil actions with the U.S. Attorney's Office, so I expect that the Commission will hold off for now pending decisions on whether to pursue federal charges against individual executives. An AP story (here) discusses the filing. (ph)
NOW v. Schiedler is a case that is well known in legal circles. The latest appears to be an attempt to have certiorari granted with issues regarding the Hobbs Act. The essence of the Petition in Opposition to a cert grant is that "[t]his Court should abide by its settled practice of denying certiorari over non-final rulings remanding matter to the district court." Obviously, the other side presents a different picture. Some of the briefs in this case are below.
A former employee of the U.S. Attorney's Office for the Middle District of Louisiana will be pleading guilty to "willfully engaging in a conflict of interest, a felony violation of 18 U.S.C. §§ 208(a) and 216(a)(2)." According to a press release of the criminal division, the individual who will plead guilty to a criminal information "worked as the Coordinator for the Law Enforcement Coordinating Committee (“LECC”) Program of the U.S. Attorney’s Office."
The former employee of the U.S. Attorney's Office was alleged to have been "negotiating with a Government vendor, PHI Investigative Consultants (“PHI”), to give periodic LECC-sponsored training seminars for the Middle District of Louisiana and other United States Attorneys’ Offices. At the same time, he arranged for PHI to hire his wife to plan and coordinate all seminars that PHI conducted. His wife then began operating a business doing seminar planning and coordination work for PHI between 2000-2002." The bottom line is the charges describe a conflict of interest that permitted the accused to benefit financially.
One has to applaud the local US Attorney's Office as it recused itself from the matter and it was sent to D.C. for the Inspector General to oversee.
But it appears that key dates in the press release imply that the conduct occurred between 1999 -2002. Questions - Did the US Attorney's Office have an "effective program" to comply with the law? Would the result in this case be the same if this was a corporation that had an individual employee who violated the law?
Wednesday, May 25, 2005
Perhaps one of the hardest subjects to teach in criminal law is the law of conspiracy. It is therefore not surprising that the Scrushy jury is having trouble understanding this particular aspect of the case. (see here and here) After the usual and unusual (see here) preliminary aspects of the jury instructions, the court's instructions in this case then proceed through each count of the indictment, defining the elements that the government needs to prove in order to convict the defendant of these crimes. Although the first count is conspiracy, the court tells the jury that she will describe this one after she has finished with the others, since conspiracy includes these other offenses. That's the first clue that this charge is complicated.
The accused, Richard Scrushy is charged with conspiracy under 18 U.S.C. s 371, the general conspiracy statute that tacks on an underlying offense to a general conspiracy charge. Unlike some other conspiracy statutes in the federal code (RICO and drug conspiracies), this statute explicitly requires that the government prove an overt act on the part of the defendant. Other conspiracy statutes often do not require proof of an overt act. That's the second clue that this charge is complicated.
Conspiracy under 18 USC 371 is divided into two possible choices. One possible approach is a conspiracy to defraud, where the deprivation is to the United States government. Under this portion of the statute it is not necessary to show an underlying specific offense. It is enough if there is a deprivation of the federal government. In contrast, a conspiracy to violate a specific provision of the Code, such as wire fraud, etc. requires that the government prove the agreement was to commit the crime alleged. In this case the alleged agreement was to commit numerous different crimes. That's the third clue that this charge is complicated.
The government in federal cases has the option of charging both the underlying conspiracy and the specific offense, thus charging the defendant with two different crimes for the same exact conduct. Some states do not permit this double charging and the Model Penal Code prohibits it "unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted." (Dressler's, Understanding Criminal Law). So jurors are left to figure out not only the substantive offense on a jury form, but also whether there was an overt act regarding the individual conspiracy acts - even when the conduct is exactly the same as some of the specific counts they are considering. That's the fourth clue that this charge is complicated.
Couple that with 78 pages of jury instructions, and that number does not even include the numerous pages of verdict forms with explicit questions for the jury to answer-- and you ask why the jury is confused and wants explanations in lay people's terms?
Discussed here were the government problems in the Rosen case, a case involving an individual who served as a fundraiser for "Senator's A." The latest events in the trial may present even more problems for the government's case. According to CNN here, David Rosen testified "that he knew nothing about cost overruns for a lavish Hollywood fund-raiser he helped stage." The prosecution now gets to cross-examine Rosen on this testimony and that is occurring today. Stay tuned.
Not surprisingly, the jurors deliberating in the trial of former CEO of HealthSouth, Richard Scrushy, are having difficulty reaching a verdict. According to the Birmingham News here and Wall Street Journal here, the jurors in the case have sent a second note to the judge saying they are having difficulty reaching a consensus and asking for an explanation, this time in "layman's terms." We reported on the jury instructions here, and one can find the 78 pages of jury instructions here. The problems may be focused on the conspiracy charge.
The trial was several months and there are a good number of counts including conspiracy, securities fraud, wire fraud, mail fraud, false statements, and yes- a first time ever SOX charge.
Everytime I teach the course in white collar crime, I see law students struggle to grasp the meaning of terms within some of these statutes. For example, the instruction on wire fraud includes the following statement:
"To 'deprive another of the intangible right of honest services' means to violate a duty, or to cause another to violate his duty, to render honest services to HealthSouth, including its shareholders and its Board of Directors. The Government must prove beyond a reasonable doubt that Mr. Scrushy intended to breach a fiduciary duty, and that he foresaw that HealthSouth, including its shareholders and its Board of Directors, might suffer economic harm or risk economic harm as a result of that breach."
The instructions provide the following definition of "honest services":
"'Honest services' means the duty of an officer or employee of a company to act honestly and faithfully in dealings with the company, and to transact business in the best interest of the company, including a duty to disclose any material information on which the company, its shareholders, and Board members are entitled to rely in making business decisions."
One has to admit that these are not particularly easy concepts to understand. So it is not surprising that the jury in this case is asking for an explanation in "layman's terms." The problem is, I'm not sure that any judge could do better in defining these statutes then what has already been stated. Perhaps the problem is vagueness, ambiguity, and basic understandability - problems that Congress needs to correct.
And yes, I can't help but wonder if there might be less criminal charges filed if the law were clearer. More would understand exactly how to conform their conduct to the law and be on notice of what was legal and what was not. Perhaps compliance could be enhanced with simplicity.
The British Home Secretary, Charles Clarke, approved the extradition of David Bermingham, Gary Mulgrew and Giles Darby to the United States to face wire fraud charges in Houston related to transactions with an Enron-related SPE organized by Andy Fastow and Michael Kopper. The three were officers of Greenwich NatWest, a division of NatWest Bank, which is now owned by Royal Bank of Scotland (RBS). According to the indictment (here), when it became clear that NatWest would be acquired by RBS, which would put their jobs at risk, the three defendants hatched a scheme with Fastow and Kopper to take for themselves Greenwich NatWest's investment in a Cayman Islands company (LJM) that was used by Enron for off-books transactions. The three defendants are charged with seven counts of wire fraud in relation to the scheme, and it is alleged they received a total of approximately $7.3 million from the transaction. The defendants had sought to be tried in Britain because their actions took place there and the victim of the alleged fraud is a British company. They can appeal Home Secretary Clarke's decision, which would likely slow the extradition process further. The Times story (here) discusses the extradition decision, and check Tom Kirkendall's Houston's Clear Thinker blog (here) for information about the prosecution (including pictures of the three defendants). (ph)
Tuesday, May 24, 2005
Sometimes a judicial opinion catches your eye, and this one did, although it's at best only tangentially a white collar crime case (well, there's a property sale, so that brings it under our giant tent). The Ninth Circuit has a rather wry recitation of the facts of a criminal prosecution for interfering in the sale of government land. In United States v. Cassel (here), the defendant was charged with violating 18 U.S.C. Sec. 1860 for his statements made to potential purchasers of federal land in the Mojave Desert. It seems that Mr. Cassel (and his girlfriend, Anastasia Kafteranis, who owned the property on which they lived) did not want any neighbors on property the Bureau of Land Management planned to sell, so when the first potential purchasers came to look at the property, the following interchanges took place:
Arthur and Alice Rinard, a married couple, were interested in buying one of the government lots, and in January 1998 they visited the property to look around. As they were walking around, Cassel approached them. He was accompanied by two of his dogs. One of the dogs—a certain "Mr. Mooch Face"—was extremely ugly and at least somewhat aggressive, probably because it had once been run over by a car. Cassel began a conversation with the Rinards that would continue over the following two days. Cassel’s participation in the conversation consisted mostly of providing the Rinards with a series of dramatic reasons why the property that the Rinards were considering was quite undesirable. Cassel claimed, among other things, that the government’s maps misidentified the boundaries between the various lots; that bidding on one of the lots—lot 107—was pointless because Cassel and Kafteranis were going to purchase it no matter what the cost; that it would cost at least twenty thousand dollars to get the permits needed to build a residence on the property; that the surrounding area was inhabited by child molesters, murderers, producers of illegal drugs, devil-worshipers, and witches; that the ground was a toxic waste dump contaminated with cyanide; that local law enforcement officials were corrupt; that mining explosions had damaged Kafteranis’s own house; and that a neighbor had developed a disease known as "silica lung."
Cassel invited the Rinards to join him and Kafteranis for dinner, and despite his generally unneighborly demeanor, they agreed. Cassel kept up his invective during the meal, and his dogs continued to appear aggressive. He ultimately succeeded in dissuading the Rinards from purchasing the lot they had been considering—not, according to Mr. Rinard’s testimony, because they believed his stories about nearby witches, but because they did not want Cassel as a neighbor.
After making similar comments to a second set of potential purchasers -- who decided not to buy the property for some unfathomable reason -- the government charged Cassel with two counts of violating Section 1860 along with one count of witness intimidation. Section 1860(a) (here) provides: "Whoever, by intimidation, combination, or unfair management, hinders, prevents, or attempts to hinder or prevent, any person from bidding upon or purchasing any tract of land so offered for sale—Shall be fined not more than $1,000 or imprisoned not more than one year, or both." Cassel challenged his conviction under the statute on First Amendment grounds. The court first rejected his facial unconstitutionality argument, holding that the statute must be interpreted to incorproate an intent element regarding the intimidation to meet the requirements of the Supreme Court's opinion in Virginia v. Black (on the constitutionality of Virginia's cross-burning statute). The Ninth Circuit went on to overturn the conviction on the ground that the jury instructions did not articulate the requisite specific intent to intimidate element of the crime, read into the statute by the court to avoid First Amendment problems. The court held:
In view of our holding that 18 U.S.C. § 1860 includes a mens rea element of subjective intent, Cassel’s first contention is correct, for the instruction included no such requirement. It did require that the intimidation be “for the purpose of compelling or deterring legal conduct,” but that is by no means the same thing. It is not enough that the defendant by means of a threat. Were it otherwise, a defendant could be convicted under § 1860 who, for example, merely attempted to dissuade the potential bidder by informing him of dangerous conditions in the area surrounding the land to be sold. Such a result comports neither with the First Amendment nor with the statute’s purpose, which is to punish interference by intimidation, not to prevent potential land buyers from hearing negative viewpoints on the land for sale.
Cassel may not be the friendliest neighbor around, and spending too much time out in the sun in the Mojave Desert can do funny things to you, but when has being unneighborly (to say the least) been a federal offense? Now, naming your dog "Mr. Mooch Face" is another matter. (ph)
Jared Bowen, a former vice-president at Wal-Mart, has filed a whistleblower complaint with the Department of Labor over his termination by the company in late March, which he claims was in retaliation for disclosing expense-account abuses by former executive and board member Thomas Coughlin. The company reported to the U.S. Attorney in March that Coughlin had submitted false invoices for up to $500,000, and there is a grand jury investigation of Coughlin. Just to complicate matters, Coughlin's attorney has hinted that the funds were used to make secret payments to union officials for information about organizing drives involving Wal-Mart employees (see earlier post here). Bowen asserts that he reported two instances of improper billing by Coughlin, but was terminated because he failed to report a third instance of misconduct involving Coughlin and that there was a "loss of confidence" in him.
Section 806 of the Sarbanes-Oxley Act created protections for employees of publicly-traded companies who report misconduct involving fraud (18 U.S.C. Sec.1514A here). The provision provides the following remedies:
(1) IN GENERAL- An employee prevailing in any action under subsection (b)(1) shall be entitled to all relief necessary to make the employee whole.
(2) COMPENSATORY DAMAGES- Relief for any action under paragraph (1) shall include--
(A) reinstatement with the same seniority status that the employee would have had, but for the discrimination;
(B) the amount of back pay, with interest; and
(C) compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.
Who among us really misses the independent counsel statute? An earlier post (here) discussed a D.C. Circuit case involving a former lower-level administrator at the White House who got caught up in the travel office investigation, a minor sideshow in the Whitewater investigation, and sought attorneys fees under the statute. At least that investigation has ended, but it seems that the IC investigation of former HUD Secretary Henry Cisneros remains alive, and with continuing support from Congress it may keep going, and going . . . According to an AP story (here), a move to terminate funding for the investigation was killed in a closed-door Senate negotiation, which allows Independent Counsel David Barrett to remain on an investigation in which the initial target (Cisneros) entered a guilty plea to a misdemeanor in 1999 (he paid a $10,000 fine) and was pardoned in 2001, arising from lying to the FBI about payments made to a mistress. Barrett estimates that it will take at least another ten months, and possibly longer, to complete the investigation and issue a report. How has it taken so long, you might ask? Well, the Wall Street Journal had reported back in 2000 that Barrett expanded his investigation to cover possible obstruction by the IRS and DOJ of the Cisneros investigation at the instigation of the Clinton White House, but not much has been heard recently (see National Review article here).
Barrett was appointed on May 24, 1995, so this is his tenth birthday, which I suspect is the record for the longest continuous service as an Independent Counsel -- he's been on the job longer than my youngest daughter has been around. While being the Cal Ripken of the IC crowd is something to be proud of, one wonders how much longer the investigation will remain open, especially after the government's expenditures on it have exceeded $21 million and not much seems to have come out over the past couple years. Nevertheless, Robert Novak had an article earlier this month (here) proclaiming that Barrett's report contains blockbuster information about IRS efforts to obstruct the Cisneros investigation, something likely to draw a yawn from most. (ph)
David Boies, one of the best known litigators in the country (Bill Gates and Gen. William Westmoreland are among his former opponents), is involved in two high-profile corporate crime cases, but in different roles. In the prosecution in New York Supreme Court of former Tyco CEO Dennis Kozlowski and CFO Mark Schwartz, Boies testified on behalf of the government about the lack of documentation for $37 million in loans to the two defendants that were foregiven by the company. Boies and his law firm, Boies, Schiller & Flexner, conducted the internal investigation of Tyco's finances after Kozlowski was fired as CEO. A Wall Street Journal story (here) discusses the closing arguments in the retrial, including the comment by Schwartz's attorney describing Boies as the "$45 million man" for the fees charged to conduct the internal investigation.
On of Boies' current clients is former AIG CEO Maurice Greenberg, who is at the center of the government's investigation of improper accounting for reinsurance transactions and other problems at AIG. Greenberg asserted the Fifth Amendment rather than testify before federal and state investigators, and is likely the prime target of the criminal investigations, although it is an open question still whether he will be charged with any crimes. Look for Boies to take a leading role in arguing that his client made reasonable accounting decisions, a point already made by Greenberg in a letter to AIG's board after it disclosed the conclusions of an internal investigation that included statements regarding former management, i.e. Greenberg among others (see earlier post here). Boies is sure to have had a hand in the drafting of that missive, and in shaping Greenberg's response to the various government investigations. (ph)
Corruption Inquiry Into Spokane Mayor Will Be Conducted By U.S. Attorney for Western District of Washigton
A brief announcement (here) from the U.S. Attorney's Office for the Western District of Washington states that the office will conduct the investigation of controversial Spokane Mayor Jim West after the Eastern District USAO recused itself from the case. The investigation concerns possible violations of federal anti-corruption laws by West for offering city jobs and appointments to young men he met in on-line chat rooms. An article in the Spokane Spokesman-Review (here) discusses the investigation, including the appointment of one person to the city's Human Rights Commission who had a relationship with West. (ph)
Monday, May 23, 2005
Christine Hurt on the Conglomerate blog (a very worthwhile read) has a review (here) of the movie Enron: The Smartest Guys in the Room, along with an interesting commentary interchange with John Steele (including reference to Body Heat, perhaps the only movie that hinges on the Rule Against Perpetuities).
Former Washtenaw (Michigan) Assistant County Prosecutor Charles Carpenter entered a no contest plea to identity theft related to obtaining a credit card in his disabled mother's name and stealing money from her. Carpenter, who had been charged originally with five felonies before the plea, joined the prosecutor's office in 2000 after moving to Michigan from Tennessee, where he also worked as a prosecutor. Carpenter was sentenced to two years probation and switched to being an inactive member of the Michigan bar, although that will not prevent the imposition of sanctions -- possibly disbarment -- by the Michigan Attorney Disciplinary Board. An article in the Ann Arbor News (here) discusses the case.
Former General Re CEO Ronald Ferguson asserted his Fifth Amendment privilege rather than testify in the SEC and DOJ investigation of AIG-General Re reinsurance transactions, and promptly lost his consulting contract with Berkshire Hathaway. Ferguson was CEO of General Re when Berkshire Hathaway acquired the company in 1998, and left that position in 2001 when the company suffered substantial underwriting losses. A press release issued by Berkshire Hathaway (here) states that Ferguson had been subpoenaed to testify in the investigation. He now joins, among others, former AIG CEO Maurice Greenberg and former AIG CFO Howard Smith as one of the senior executives to have invoked the Fifth Amendment to resist answering questions in the investigation. As discussed in an earlier post (here), New York Attorney General Eliot Spitzer's office is conducting a grand jury investigation that has already heard from one AIG executive, Joseph Umansky. The pace is quickening as another one rides the Fifth Amendment privilege bus. (ph)
A story in the North County Times (San Diego) discusses the NASD's funding of a study to analyze why the elderly are the targets of investment scams. George Chamberlin sums it up (here): "I could have saved these guys a lot of money. The reason the elderly are targeted for investment scams is the same reason that Willie Sutton said he robbed banks: That's where the money is." I'm always leery of criticizing studies based just on the title, and there is certainly value in determining whether there are particular schemes or pitches that work well on the elderly. That said, scam artists focus on the elderly because of particular vulnerabilities of many of them, such as isolation and a lack of access to unbiased financial (and legal) advice; pressures from living on a fixed income in the face of increasing costs (especially medical and prescription costs), a lack of investing experience, and susceptibility to high-pressure sales tactics. These traits are not exclusive to the elderly, and many scams also target immigrants and religious groups (the latter particularly fall prey to appeals based on trust of a fellow church member). The elderly are like banks because they do have assets, and as the baby boomers age, the schemes targeting those near retirement age and the newly-retired will only increase. Let's hope the NASD is investing its research dollars well. (ph)