Monday, October 31, 2005
The nomination of Third Circuit Judge Samuel Alito, Jr., to the Supreme Court is now official, and a very quick check of his opinions while serving on the court of appeals shows that there are no major decisions on white collar crime issues. One of some interest is the decision in United States v. Cohen, 301 F.3d 152 (3d Cir. 2002), in which the court overturned the obstruction of justice conviction of a former Secret Service agent who stole money that was seized in an arrest. Judge Alito's opinion found that the government introduced insufficient evidence of his intent to obstruct justice, holding that his theft of money that was related to an investigation was not enough to show the intent to impede the investigation or prosecution. In another case familiar to those who follow white collar crime cases, he wrote the opinion in United States v. McDade, 28 F.3d 283 (3d Cir. 1994), that rejected then-Representative Joseph McDade's challenge to the government's RICO and corruption charges on the grounds that it violated the Speech or Debate Clause, holding that the government was not questioning the Congressman about his statements. The government's prosecution of McDade, and his subsequent acquittal, led to the adoption by Congress of the McDade Act, 28 U.S.C. Sec. 530B, which requires federal prosecutors to adhere to the professional responsibility rules of the state in which the attorney practices, and the Hyde Amendment, 18 U.S.C. Sec. 3006A Note, which permits an award of attorney's fees to a defendant who is a "prevailing party" in a prosecution.
Prior to his appointment to the Third Circuit, Judge Alito was the United States Attorney for the District of New Jersey from 1987 to 1990. In that role, he certainly had significant contact with a wide range of white collar crime issues, so he will be familiar with many of the questions that arise in such cases. In thinking about the nomination of Judge Alito, has there been a Supreme Court justice who served as a United States Attorney (not the Attorney General, which is a much different position)? That position gives a person a front-row seat to a number of federal criminal law issues, a background no current member of the court has (save perhaps Justice Breyer's involvement in the Federal Sentencing Guidelines). (ph)