Wednesday, October 26, 2005
According to the NYTimes here, Lynn Stewart, an attorney who was convicted for allegedly aiding a terrorist has been denied a new trial. Her case arises from her representation of Shiekh Omar Abdel Rahman. (see here) The claim for a new trial was premised on problems related to the jury. (see here). For details on Lynn Stewart's claims, see the Lynn Stewart Defense Committee website at http://www.lynnestewart.org/
In addition to rejecting Lynn Stewart's motion for a new trial, the NYTimes states that the judge also expressed that the two lawyers representing Stewart "had engaged in legal 'misconduct' by meeting with one of the jurors after the trial without notifying him or the prosecutors."
One has to admit one thing about Patrick Fitzgerald's investigation in the leak case, and that is with three days remaining he has managed in one of the highest profile cases to have everyone guessing. Obviously the last thing he wants is to have a leak coming from his office or the grand jury. And the result is that everyone appears to be guessing at what Prosecutor Fitzgerald will do with information that he has. The Wall Street Jrl's latest is here, the NYTimes is here and the LATimes here. When they say that prosecutors have enormous power, were they referring to their power to keep everyone guessing?
Accroding to the St. Pete Times, SOCom, the United States Special Operations Command, has had its share of white collar related problems within its ranks. In this past month alone, the St. Pete Times reported on the "widening" of a bribery scandal. (see post here) Yesterday, the St. Pete Times provided a listing of some of the titles of articles they have published on SOCom, "the military arm that overseas the nation's elite commmandos such as the Green Berets and the Navy SEALS." The titles of these articles included "SOCom Target of Bribery Investigation," and "SOCom Hides $20-million from Congress." (see article here - titled "Despite Problems, SOCom Carries On). Paul De La Garza of the St. Pete Times provides an in depth report in this article of investigations, responses by SOCom, etc.
Tuesday, October 25, 2005
Judith Miller said in her NYTimes story here that:
"Before the grand jury, Mr. Fitzgerald asked me questions about Mr. Cheney. He asked, for example, if Mr. Libby ever indicated whether Mr. Cheney had approved of his interviews with me or was aware of them. The answer was no."
In our post here we questioned "[w]hy was Patrick Fitzgerald asking Miller about whether Cheney knew anything?"
Clearly a thorough prosecutor probes all angles in an investigation. But one now wonders if there is more here than known before. In a New York Times article here one learns that there may be a reason why Vice President Cheney's name arises in this testimony.
Everyone, however, seems to be discarding the possibility of a criminal charge premised upon the disclosure of the information - the leaked name - and instead looking at obstruction, false statement or possible perjury charges here. The key here is whether there was an intentional leaking. Obstructive conduct, false statements, and perjury, may be the reason why the true story is not coming to light. And if so, these charges may be warranted. But irrespective of whether the name was leaked intentionally or negligently, is someone saying that the government did not have in place a proper compliance program to avoid leaks of this nature? Did the government not demand of its employees what it demands of U.S. corporations?
Unlike one political officeholder who is downplaying the leak of a CIA agent's identity, or calling a possible perjury charge a "technicality" to justify a two year investigation (see post here), President Bush is recognizing the gravity of such a leak. According to a Reuters (Yahoo News) report here President Bush called this investigation "very serious." One assumes he finds it "very serious" because of the implications of a leak to our national security, and not because of any serious harm it may do to his administration. An administration that has called for extreme measures such as some found in the Patriot Act, would be inconsistent to then say a security leak of this nature was not important to national security.
The Wall Street Jrl here provides a podcast and in-depth analysis of the 2002 Sarbanes Oxley Act. Of particular interest in this podcast and articles are how this legislation effects small businesses. One of the more fascinating aspects of this review is that "according to a Wall Street Journal Online/Harris Interactive personal-finance poll" "a large proportion of U.S. investors believe financial and accounting regulations governing publicly held companies are still too lenient." (see here).
Monday, October 24, 2005
Robert D. McCallum, Jr., Acting Deputy AG, issued a "Memorandum" to "Heads of Department Components and United States Attorneys" concerning the statement in the Thompson Memo that speaks to the waiver of the attorney-client privilege. The Memorandum notes that "[o]ne of the nine factors [listed in the Thompson Memo] is 'the corporation's timely and voluntary disclosure or wrongdoing and its willingness to cooperate in the investigation of its agents, including, if necessary, the waiver of corporate attorney-client and work product protection.'" McCallum's memo does not find this practice improper, nor does it reject a prosecutor's asking for the waiver of the attorney-client privilege when dealing with a corporation or business. This new memo merely directs that "consistent with" the practice used by some US Attorneys' Offices, each individual office should "establish a written waiver review process for [their] district or component."
Ironically, in contrast to the position taken by DOJ with respect to sentencing matters, this memo states that "[s]uch waiver review processes may vary from district to district (or component to component), so that each United States Attorney or component head retains the prosecutorial discretion necessary, consistent with their circumstances, to seek timely, complete, and accurate information from business organizations."
Is this supposed to placate those who have been criticizing the government's requests for a waiver of attorney-client privilege in dealing with corporations and businesses?
The Memo is here - Download AttorneyClientWaiverMemo.pdf
In an in-depth report in the Washington Post here, is a discussion of the life and times of I. "Scooter" Libby. It includes everything from his prior representation of Marc Rich, an individual who received one of the controversial pardons from former President Bill Clinton to him being well educated - prep school at Phillips Andover and law at Yale. But the opening line of the article is almost a challenge to Patrick Fitzgerald - did Libby really quip "to an aide that he planned to stay as Vice President Cheney's top adviser until 'I get indicted or something.'"?
On Meet the Press, in the context of discussing possible charges from the grand jury investigation of the leak of the status of Valerie Plame, Senator Kay Bailey Hutchison stated that a perjury charge would be a "technicality" and any such charge would be an attempt by Special Counsel Patrick Fitzgerald to justify a two-year investigation -- see the Reuters story here. As an earlier post (here) notes, this may well be the week in which Fitzgerald decides whether to seek a grand jury indictment. The Reuters article also notes that Fitzgerald may inform one or more officials in the administration that they are targets of the investigation, a final step toward seeking an indictment.
If a perjury (or Section 1001 or obstruction of justice) charge were to be returned by the grand jury, is that just a technicality, particularly if the underlying subject matter of the investigation -- whether there was a violation of federal law from the disclosure of Plame's position as a cover intelligence agent -- is not also charged? Lying is hardly a technical violation of the law, particularly when a person has sworn an oath to testify truthfully before a federal grand jury, and trying to diminish perjury as a "collateral" violation or otherwise unimportant denigrates the integrity of the investigative process. As the Eighth Circuit noted in U.S. v. Lasater, 535 F.2d 1041, 1049 (8th Cir. 1976): "The grand jury performs an important function in our judicial system, as the device by which criminal investigations are conducted and criminal proceedings instituted . . . Any false testimony before a grand jury, which tends to impede its investigation, should be diligently prosecuted." Interestingly, a claim of perjury was the basis for the first article of impeachment (here) against President Clinton, which stated:
[I]n violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that: On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury . . . .
That does not sound like a "technicality" to me. (ph)
Paul McNulty, the United States Attorney for the Eastern District of Virginia, will be nominated to the vacant position as Deputy Attorney General, to succeed James Comey, who left in August. Timothy Flanigan, who worked in the White House Counsel's office, was originally tapped for the position, but withdrew over problems related to his lack of criminal law experience and ties for lobbyist Jack Abramoff, who is under indictment for bank fraud. McNulty has served as United States Attorney since 2001 (biography here), and his office handled high-profile terror prosecutions (e.g., Zacarias Moussaoui) and procurement fraud cases related to the Pentagon (e.g., Darleen Druyan). An AP story (here) discusses the nomination. (ph)
The Department of Justice's Hurricane Katrina Fraud Task Force issued a press release (here -- through the U.S. Attorney's Office for the Southern District of Texas) outlining the focus of the investigatory and prosecutorial effort to address frauds related to disaster relief from Hurricanes Katrina and Rita -- and no doubt Hurricane Wilma will be added to the list if it causes significant damage. The Task Force has brought forty cases since early September, not only in districts directly affected by the hurricanes but also as far away as California and Oregon. The types of cases the Task Force is concentrating on are :
- Fraudulent Charities: Cases in which individuals falsely hold themselves out as agents of a legitimate charity, or create a “charity” that is in fact not legitimate;
- Identity Theft: Cases in which the identities of innocent victims are stolen and assumed by criminals who convert the funds of, or otherwise defraud, the victims;
- Government-Benefit Fraud: Cases in which individuals file false applications seeking benefits to which they are not entitled;
- Government-Contract and Procurement Fraud: Cases in which individuals and companies engage in fraud related to federal funds provided for the repair and restoration of infrastructure, businesses, and government agencies in the affected region; and
- Insurance Fraud: Cases in which false or inflated insurance claims are filed.
A former employee of a Houston law firm, Roy Allen, received the maximum five-year sentence for mail fraud for a scheme to use the firm's money to fund a purchase of a house that Allen hoped to flip in a quick sale so that he could repay the money without being noticed. The scheme took place in 2001, before the statutory maximum was bumped up to 20 years by the Sarbanes-Oxley Act in 2002. According to a press release issued by the U.S. Attorney's Office (here):
While employed with Gallagher, Lewis, Downey & Kim, a Houston law firm, Waters had limited authority to request transfers from the firms accounts to carry out firm business. However, without authority or authorization, Waters requested and secured transfers of substantial sums of the firms funds for his own use. Waters attempted to conceal his theft by transferring more than $2.5 million in the firm's fund to purchase houses in the Royal Oaks Subdivision in Houston with the hope of using anticipated profits from the resale of those houses to secretly pay back the money. This illegal wire transfer took place on May 14, 2001. When his theft was detected, Waters transferred ownership of the houses to the firm.
An AP story (here) notes Senator Bill Frist's acknowledgment that the SEC's investigation of his sale of HCA Inc. stock from so-called blind trusts may affect his decision whether to run for President in 2008. While the SEC's investigation will not be concluded swiftly, given the volume of stock sales by HCA executives and potential sources of information, it will likely be done long before the primaries in 2008. The greater problem for Senator Frist is the innuendo that an investigation causes, even if the SEC decides not to pursue a civil fraud action. The end of an investigation, even one without any public action, never receives the same publicity as reports of its initiation and stories about subpoenas being sent to those involved in the transactions. The political assessment will follow the legal decision, but will include factors far removed from the federal securities laws. (ph)
Sunday, October 23, 2005
Patrick Fitzgerald's time with the grand jury is running out. His options include indicting, not indicting, or asking to continue his investigation.
In the background is "The Miller Mess," discussed here. Right now Judith Miller must be wondering if she is receiving criticism because of her testimony concerning "Scooter" Libby. Or is it that she spent 85 days in jail and then did not know the source of the information. (see prior posts here, here and here) And this does not even begin to get to any inconsistencies that might exist regarding these events. (see post here).
Clearly Fitzgerald will be careful in making sure that he has probable cause before issuing any indictments (see here) But it is also important that action be taken to punish improper conduct. As repeatedly stated: "[t]he bottom line is that someone leaked the name of a CIA agent. That's serious and that's a problem." And if individuals are keeping the prosecutor from getting to the bottom of events because of obstructive conduct, false statements, or perjury, then he needs to consider these charges. In these circumstances, use of these charges would not be considered a government use of "short-cut" type offenses.
If Patrick Fitzgerald can't make the case now, he should not give up - but continue the investigation until such time as the perpetrators are found. The leak of a CIA identity is too important to our national security to leave this event as an unsolved mystery.
The US Attorney for the Central District of California has indicted an individual for an alleged investment scam of claiming to be producing a television series on Homeland Security. In a press release here "the owner of Steeple Entertainment, was named in a 23-count indictment that accuses him of mail fraud, wire fraud and money laundering in relation to a scheme that raised more than $5.5 million from at least 70 investors." A second defendant, the CFO, is pleading guilty. (Isn't it interesting how the CFO's tend to get the best deals --could it be because they have the most information to offer the government?)
According to the press release, "As part of the alleged scam, [the indicted individual] falsely claimed that the 'DHS' television series had the endorsement of President George W. Bush and the real Department of Homeland Security, and that Steeple had 26 episodes of 'DHS' in post-production."
Saturday, October 22, 2005
On Wednesday, Special Counsel Patrick Fitzgerald's office put up a website (here) through the Department of Justice that contains documents related to the case, the most recent being an Aug. 27 memorandum from the Deputy Attorney General about supervision of the Special Counsel. The site is still rather barren, with links to documents appointing Fitzgerald, two press statements, and the decision on the reporter's privilege. A Los Angeles Times story (here) notes that the spokesman for the office cautioned not to read into the decision to launch the site anything about possible decisions to seek indictments, noting that the website was long overdue. It's awfully hard to resist doing so, however.
Adding fuel to the fire, a Reuters article (here) states that the grand jury investigating the leak of Valerie Plame's identity as a covert CIA operative met on Friday with two prosecutors from the Special Counsel's office, but it does not appear that any witnesses were called to testify. As the legal advisers to the grand jury, it is a fair assumption that the prosecutors' discussion concerned whether the evidence gathered during the investigation meets the requirement to return an indictment: probable cause. Even with that fairly low threshold for an indictment, it is doubtful in a high profile case like this that the Special Counsel would seek an indictment unless there is strong evidence of criminal conduct. (ph)
Defense lawyers usually tell their clients who have been charged with a crime to lay low and not make any public comments. Former Enron CEO Ken Lay, who has a website to advance his position, will be speaking to the Houston Forum on December 13 about the downfall of Enron. The speech, a bit more than a month before jury selection begins for the conspiracy trial of Lay, Jeffrey Skilling, and Richard Causey, is advertised on the Forum website (here) in the following way:
Ken Lay speaks on the collapse of the wunderkind company one month prior to his trial in U.S. District Court. We have heard from the Enron Whistleblower Sherron Watkins and New York Times Investigative Reporter Kurt Eichenwald, author of "A Conspiracy of Fools." Now we will hear from the man himself about the collapse that rattled Wall Street and the corridors of political power.
A Houston Chronicle story (here) discusses the planned speech, and quotes Lay's attorney, Mike Ramsey, did not express any discomfort with the speech, noting that "Enron's collapse hurt the community. I think Ken owes it to the community to explain his view." Does this mean the Lay is likely to testify at the trial to present his views to a much more important audience: the jury? I suspect at least one member of the Enron Task Force will be in attendance to gather a little intelligence. (ph)
Another day, another sideshow at the circus in Austin, Texas, surrounding the state prosecution of Rep. Tom DeLay on conspiracy and money laundering charges. At his scheduled arraignment before 331st Judicial Criminal District Court Judge Bob Perkins (website here), the court first took up a defense request for the appointment of a new judge because Judge Perkins has contributed to MoveOn.Org and, according to defense counsel Dick DeGuerin, the organization has been selling t-shirts emblazoned with Delay's mug shot (which is actually quite a nice photograph for that genre). Judge Perkins noted that he contributed to the organization before the 2004 election, and MoveOn denied selling such a shirt. The Judge has not ruled on the motion, and this is probably just another small part of a much bigger scene that will play out. An AP story (here) discusses the recusal motion. (ph)
The U.S. Attorney for the Eastern District of Virginia announced the guilty plea of Thomas Perry for giving illegal gratuities to federal and contract workers to receive government contracts for transportation services. What is interesting about cases like this is how modest the gratuities usually are, as compared to the loss that will be felt by the employees and payors from a criminal conviction. According to the government's press release (here): "The items of value consisted of, among other things, lunches and dinners at various restaurants in the Hampton Roads area, an open tab at a delicatessen in Portsmouth, Virginia, airline tickets, concert tickets, NASCAR race tickets, hotel room charges, sports memorabilia, and a jacuzzi." I know how popular NASCAR is, but would you trade your career for a pair of tickets? (ph)
Philadelphia City Councilman Rick Mariano has been the target of a federal grand jury investigation into possible corruption, and an indictment is widely considered likely in the near future. Yesterday, Mariano was spotted at the base of the William Penn statute atop City Hall, and the immediate reaction was to call the police and fire department because of a possible suicide attempt. A Philadelphia Inquirer story (here) notes that after begin escorted down by Mayor James Street, authorities speculated that Mariano just wanted some space to think and was not considering suicide -- a more likely explanation unless there were another heartbreaking Eagles loss. Mariano is being investigated for, among other things, having his credit-card bills paid in exchange for support for projects. (ph)