Wednesday, January 25, 2006
Peter Lattman has an interesting post on the Wall Street Journal Law Blog (here) about high-level prosecutors whose careers involved working under Michael Chertoff, the head of the Department of Homeland Security. At various points in his career, Chertoff has been the U.S. Attorney in New Jersey, head of the Criminal Division at the Department of Justice, and a judge on the Third Circuit. Among those who have intersected with Chertoff are the current head of the Criminal Division, and the U.S. Attorneys for the Southern District of New York and Northern District of Georgia. In football, there is discussion of the various coaching "lines" emanating from famous head coaches, such as Bill Walsh of the San Francisco 49ers and Bill Parcells from the Giants, Patriots, Jets, and Cowboys. Should we start talking about the Chertoff line, the Ken Starr Line, or the Janet Reno line? (ph)
The NASD has put forward new "interpretive material" (here) (called IM, but not to be confused with what my teenage daughter does ad nauseam) to its Rule 3060, entitled "Influencing or Rewarding Employees of Others." The new approach comes in response to revelations that brokerage firms have been lavishing benefits on traders at mutual funds, including Fidelity, in the form of "business entertainment" to win their firms' business and avoid the rules restricting gifts. In one particularly wholesome example, brokers paid for the bachelor party of a Fidelity trader in Miami that included hiring a dwarf for tossing purposes (see earlier post here) that is the subject of an SEC and U.S. Attorney's Office investigation. The IM first gives a definition of "business entertainment" to distinguish it from the more restrictive rules on gifts, which cannot exceed $100 in value:
[A]ny social event, hospitality event, charitable event, sporting event, entertainment event, meal, leisure activity or event of like nature or purpose, as well as any transportation and/or lodging accompanying or related to such activity or event, including such business entertainment offered in connection with an educational event or business conference, in which a person associated with a member accompanies and participates with such employee irrespective of whether any business is conducted during, or is considered attendant to, such event." This definition codifies NASD’s longstanding position that a member must accompany or participate in an event for it to be deemed business entertainment. Thus, for example, if a member gives tickets to a sporting event but does not accompany the recipient to the event, the tickets are deemed to be a gift rather than business entertainment. In addition, the definition of "business entertainment" expressly includes transportation and lodging expenses provided by a member.
The idea of defining "business entertainment" is to tighten up on what is permissible and not just a gift in disguise. From there, though, the NASD then puts the burden on the brokers to come up with their own policies about what is and is not acceptable. The IM adopts a general approach that business entertainment should not go, in effect, too far, but does little to create any kind of bright line. According to the proposed IM:
The overriding principle of the proposed IM is that a member or its associated persons should not do or give anything of value to an employee of a customer that is intended or designed to cause, or otherwise would be reasonably judged to have the likely effect of causing, such employee to act in a manner that is inconsistent with the best interests of the customer. The proposed IM provides guidance concerning the written policies and procedures that members must adopt surrounding their business entertainment practices. First, the member must determine and define the forms of business entertainment that are appropriate and inappropriate, including appropriate venues, nature, frequency, types and class of accommodation and transportation, and either firm dollar limits or thresholds requiring advance written approval. Notably, the proposed IM does not impose hard limits, nor does it require that all members adopt the same limits or even treat all recipients equally. At the same time, however, a member’s policies and procedures must not be so unbounded or vague that no reasonable determination of propriety can be discerned. In addition, the proposed IM expressly would allow members to set different standards for business entertainment in connection with events that are educational, charitable or philanthropic in nature.
Different standards means that each firm will be accountable -- or not -- for what it is willing to permit in this area. Will some firms write standards that leave enough wiggle room to avoid ever being in violation of the rule except in the most egregious cases? Policing the brokers may not be the best approach if mutual funds can hide the true costs of their trading through minimal, and untimely, disclosure. The better approach may be to enhance the disclosure of trading costs, and the firms that are used to execute transactions (including the amount paid to each), so that all can see how much is being paid. Would the industry accept that level of transparency? Perhaps not, but adopting a "standard" that allows firms to set different standards may not do much to curb excessive business entertainment. (ph)
Professor Pamela Bucy, one of the leading academics in the white collar crime field, has been awarded the Burnum Distinguished Faculty Award by the Univeristy of Alabama, where she has been on the faculty of the School of Law since 1987. The Award is the highest honor for a scholar at the University, and recognizes her many contirbutions to legal scholarship. Pam is an author or co-author on treatises on health care fraud and federal criminal law, in addition to her casebook on white collar crime and a number of law review articles. Congratulations!
Richard Hatch, the first winner on the Survivor series, will now have to navigate a federal prison after a jury in Rhode Island convicted him on all 13 counts of tax evasion. Hatch was charged with failing to report the $1 million prize he received from Survivor along with over $300,000 from co-hosting a show on a Boston radio station and payments he diverted from a charity he controlled. After originally agreeing to plead guilty to two counts, Hatch backed out of the deal and went to trial on the charges. Although defense counsel offered a variation of the "I'm an idiot" defense by asserting that Hatch is the "world's worst bookkeeper," there was no further mention before the jury of the attorney's claim that Hatch made a deal with Survivor's producers for them to pay the taxes on his prize if he did not report that other contestants cheated by secretly eating. The jury deliberated less than a day before returning its verdict, and in a step not usually seen in white collar cases, the judge ordered that Hatch be taken into custody immediately because he is a flight risk. An AP story (here) discusses the jury verdict. (ph)
Tuesday, January 24, 2006
LATimes (AP) reports here that U.S. District Judge John Walter rejected a plea agreement involving former Gemstar-TV Guide International Inc. Chief Executive Henry Yuen. The deal would have allowed Yuen to receive a minimal sentence in comparison to many of the recent white collar sentences issued throughout the United States, ("6 months of home detention, a $250,000 fine and a $1-million charitable donation").
It is rare that a judge rejects a plea agreement, but it is also rare that a company weighs in by asking the judge not to go ahead with this lenient sentence. The government now has the choice of either entering into new negotiations that result in a plea with a stiffer sentence, go to trial, or dismiss the case entirely.
CNN (AP) reports here that Ken Lay and Jeffrey Skilling, former Enron executives who face criminal charges in federal court, will be facing a hometown jury as their motion for a change of venue was denied. The case will proceed in Houston next week. (See also Mary Flood's story in the Houston Chronicle here; and Tom Kirkendall's Blog Houston Clear Thinkers here).
The AJC reports here of the opening witness at the Bill Campbell trial. The former Atlanta mayor was probably expecting this to be one the worst days of his trial as most advocates adhere to the law of primacy and recency and thus present their best evidence first and last. Surprisingly, it sounds like this wasn't the case for Bill Campbell, as the AJC reports that the opening witness "seemed to actually help the defense more than prosecutors." One has to wonder if the prosecution has an unusual strategy or if this really was their best evidence.
Debra Wong Yang, USA of the Central District of California issued a press release here regarding a plea of "[a] former chairman and chief executive officer of Credit Lyonnais." The plea was to "two felony charges of causing Credit Lyonnais to make false statements to the Federal Reserve Bank."
Positions as White Collar Federal Prosecutors
The Tax Division of the U.S. Department of Justice is hiring experienced attorneys to serve as federal prosecutors. Trial attorneys in the Criminal Enforcement Sections handle or supervise criminal tax prosecutions in the federal district courts throughout the United States. Cases involve violations of criminal tax laws by taxpayers having legal sources of income, as well as cases involving financial fraud, health care fraud, organized crime activities, and narcotics trafficking.
Applicants should have at least three years of post J.D. litigation experience which includes criminal or civil fraud trial experience, as well as exceptional academic credentials, and superior research, writing and oral communication skills. Applicants must be willing to travel.
Interested applicants should submit a cover letter, resume, law school and any advanced degree transcripts, a writing sample and a list of three professional references to:
U.S. Department of Justice
Tax Division – Criminal Enforcement Sections
Human Resources Office
P.O. Box 813
Washington, D.C. 20044
ATTN: Attorney Recruitment Coordinator
For more information about the Criminal Enforcement Sections, visit the Department of Justice’s Web site at: http://www.usdoj.gov/tax. For more information on attorney vacancies, please see http://www.usdoj.gov/oarm
(esp & ph)
Monday, January 23, 2006
Posted here was the Supreme Court's denial of certiorari in the case of Betty Loren-Maltese, an appeal in part premised upon the vagueness of the "honest-services" clause used in prosecuting federal fraud. the case pertained to an alleged insurance scheme.
This Monday, Loren-Maltese was re-sentenced. But according to the Chicago Tribune here the court rejected the prosecutor's arguments to increase the sentence and likewise did not reduce the eight-year sentence of the defendant. But the failure to reduce was probably difficult, especially with a Seventh Circuit decision [United States v. Spano, 421 F.3d 599 (7th Cir. 2005)] that included language of "[t]he fraud, which continued until it was unmasked in 1996, has done nothing for the reputation of Cicero, a town notorious as the headquaters of Al Capone."
Opening Statements in the trial of former Atlanta Mayor Bill Campbell were today. (See AJC here for details). In examining the newspaper reports on the opening statements, it was clearly a day for the defense who personalized their client for the jury and emphasized his role as a civil rights leader. The defense agenda looks like - "The city has over 8,000 employees" and the accused couldn't know everything. I didn't know what my aides were doing seems to be a familiar theme in some of the recent corporate criminal prosecutions.
The defense noted that Bill Campbell could have left city hall for a lucrative law firm job. He didn't, and that may be hard for the prosecution to overcome. If he were really after money, then why not take that route.
Although the defense had their day today, the next couple of weeks are likely to be in the prosecution's arena as they unfold the evidence supporting their case. Like so many recent white collar trials, the prosecution will be parading out a host of individuals who cut deals, and the defense will likely be trying to show that these deals were to save their own necks. The jury is left to determine the truthfulness of these witnesses.
In reading about the opening statement of the defense team, it is interesting to now go back and see how the questions on the jury questionnaire reflected their defense. This jury questionnaire (here) is a model that might be helpful to those who practice in courts that do not permit direct jury questioning. Some of the questions that give clues of the defense are:
15. Do you supervise others in your current job or in previous jobs? Yes___ No___ If so, how many?
46. Have you ever worked for a business where an employee has stolen money or property from the business? Yes ____ No ______ If yes, please explain.
Reported here, just days ago, was the raid on Livedoor Co. as part of a securities investigation in Toyko. It has not taken the Japanese authorities long to now arrest someone. The Washington Post reports here and the New York Times here on the arrest of Livedoor's President, Takafumi Horie. This case will be an interesting one to follow, to see how another country handles a prosecution of a major CEO type of individual. One also has to wonder the effect of such a prosecution internationally, as some of the products operate in the global marketplace.
The Wall Street Journal reports here that Ameriquest Mortgage Co reached a settlement with State Attorney Generals in which the company will "pay $325 million and change some of its practices." The Ameriquest website here notes that:
"Ameriquest will implement a series of measures to enhance the company’s business practices while continuing to help consumers meet their mortgage financing needs.
The company acknowledged no wrongdoing and there are no restrictions or limitations on the company’s licenses."
The agreement calls for detailed changes such as "[u]sing third-party closing agents to help prevent conflicts of interest."
A Report called "Crime Without Conviction: The Rise of Deferred and Non Prosecution Agreements," was released in late December by Corporate Crime Reporter. (see here) It provides fascinating data on the government's use of deferred and non-prosecution agreements, with detailed accounts of the many agreements formed between companies and the government. The report states that the government has entered into twice as many such agreements in the last four years than in the prior ten years, and that these agreements "have become the settlements of choice for prosecutors and corporate defense attorneys."
So is this a negative? Some may believe that failing to have a full prosecution, followed by a conviction, is less favorable to our justice system. It might be argued that these agreements diminish the deterrent effect of corporate criminality by failing to proceed to a formal conviction against the company.
1) First, there is another component that may also play a factor in the increase in the use of these agreements. This is the institution and progression of the corporate criminal sentencing guidelines. The carrot-and-stick approach to these guidelines may in fact be producing favorable responses that allow the government to avoid proceeding criminally and move instead to reprimanding the corporation for its failure to have full compliance with the corporation's compliance program. After all, corporations are basically mandated to have an "effective program" as corporate directors can be civilly obligated to institute these measures (see In re Caremark International Inc. Derivative Litigation) Yet, we all know that if the compliance program was really "effective," there would be no criminality. But the very institution and existence of such a program demonstrates an attempt at avoiding criminal activity. Thus, the corporate sentencing guidelines may have the net effect of reducing criminal charges and likewise reducing criminal conduct in a corporation.
Obviously, this does not preclude individuals within a corporation from committing crimes. Thus, we see the DOJ move to prosecute more individuals and less corporations. The Corporate Crime Report's conclusion that we have moved from a criminal justice system that "save[s] the individuals and plead[s] the corporation" to a system where "the individual executives are sacrificed to save the corporation," may thus be, in part, an outgrowth of the institution of the federal sentencing guidelines. But that said, it is clear that the Thompson Memo encourages corporations to give up individuals and inappropriately demands the waiver of the attorney-client privilege, actions that also play a part in the increased individual prosecution and reduction in corporate criminal convictions.
2) Second, these agreements should not be considered a negative in the fight against corporate criminality. Many of these agreements produce substantial income to the federal government and provide for victims to receive funds (e.g., Aetna Life Insurance paid 5.2 million in fines and restitution; AOL paid a 60 million dollar fine and 150 million into a victims settlement account; Bristol-Myers Squibb is paying 300 million, etc.). Are these fines any different than what would have been achieved if the company were prosecuted? This is especially true since a corporation cannot be incarcerated.
Punishment comes in many forms, and corporations are certainly not skating from punishment by entering into these agreements.
Now mind you, there are clearly some negatives to many of the existing deferred prosecution agreements. But perhaps the negatives go to the internal provisions within these agreements, provisions that are fundamentally unfair.
Sunday, January 22, 2006
Jurors for the trial of former Mayor Bill Campbell (post) have been selected (AJC here). The jury consists of seven blacks and five whites, and seven men and five women. (post here) Last week pre-trial motions resolved some of the evidentiary issues that might arise in the trial. (AJC here). The AJC has extensive coverage of this trial on a webpage here that includes links to the jury questionnaire, artist sketches, and profiles of the jurors. Opening statements and evidence starts this week.
Individuals accused of white collar crimes usually hang their heads and go into hiding. Recently, however, some have not followed this protocol. For example, Richard Scrushy, who was acquitted, had his own website. (see here) Ken Lay, who faces trial, likewise has his own website. (see here) And Bill Campbell gave a press conference the day of this indictment. One day this past week Campbell provided morning radio comments, restating his innocence. (see here). For many years defense attorneys have told their clients to say nothing, especially to the media, as what the client says may come back to haunt him or her at trial. Perhaps those accused of white collar offenses are starting a new trend in being more public on the web and with the media.
AP reports here regarding claims that Richard Scrushy paid for favorable press in his trial. Scrushy, in response, has a statement on his website here denying the claim. The bottom line is - does it make a difference since the jurors should not have been reading newspaper articles related to the case.
Saturday, January 21, 2006
"Scooter" Libby's defense is starting to show more and more. (See Washington Post here) The Wall Street Journal reports here of possible forthcoming subpeonas of the defense (interestingly the motion was filed jointly with the prosecution). Two themes seem to be appearing: 1) a defense of the "too busy executive" (see post here), and now 2) others knew this information.
This second defense is important because it can eliminate the "materiality" element of the false statement and false declaration charges. Both 18 U.S.C. 1001 and 1623 require that the statement be "material." If others already knew this information, then materiality becomes questionable. The Indictment against Libby (here) has two (2) counts of false statements and two (2) counts of perjury.
In addition to these four counts, there is a count charging Libby with Obstruction of Justice. The obstruction charge 18 U.S.C. 1503 may be more problematic for the defense. Obstruction does not have a clearly defined element of materiality. I have argued that one should read "materiality" into the statute, in the same way that "materiality" has been read into the mail fraud statute in United States v.Neder, 527 U.S. 1 (1999). (See Symposium, Washburn Law Journal - "Arthur Andersen, LLP and Martha Stewart: Should Materiality be an Element of Obstruction of Justice." (see here). Perhaps this case will wind up being the test case of whether materiality should be a part of an obstruction charge.
Friday, January 20, 2006
The tax evasion trial of Richard Hatch, the first Survivor winner, may take a strange turn if Hatch testifies in accord with a statement made by his lawyer. An AP story (here) states that during a break in Hatch's testimony in federal court in Rhode Island for not reporting the $1 million prize and other payments he received in 2000, Michael MInns, the defense lawyer, told the court that Hatch made a deal with Survivor's producers that they would pay taxes on the prize if he did not report that other contestants secretly received food from friends during the filming of the program. Hatch has not yet mentioned the purported deal in his testimony, which will continue after a weekend break. Of course, any deal with the producers would not necessarily absolve him of his reporting duty, but it could undermine his intent, and Minns has described Hatch as the "world's worst bookkeeper."
The tax evasion charges against Hatch also include the failure to report a payment by a Boston radio station and alleged diversion of funds from a charity he controlled, so any deal with the Survivor producers would not cover that income. Nor did it help his case when an accountant testified that she told Hatch he had to report the $1 million prize, with no apparent mention of the side deal. If he did make the heretofore undisclosed deal, he might not be quite as bad a tax planner as he is a bookkeeper. (ph)
Does the Push Against Organizations Paying Attorney's Fees for Employees Violate Their Constitutional Rights?
Among the flurry of motions filed by the defendants in the KPMG tax shelter prosecution is one seeking dismissal of the indictment because the government improperly pressured KPMG into terminating the payment of legal fees to its former partners charged in the case. The Department of Justice's Thompson Memo (here) on prosecuting business organizations states that an organization's decision to pay the attorney's fees for individuals under investigation or being prosecuted could be viewed as an indication of a lack of cooperation and may result in charges being filed against the organization. In the KPMG case, the firm agreed to stop paying the attorney's fees for its partners who did not cooperate in the investigation as part of its deferred prosecution agreement. After the prosecution of Arthur Andersen, it was likely that criminal charges against KPMG would result in the firm's demise, and so throwing aside a few former partners was a small cost.
A brief (link available below) filed with the U.S. District Court for the Southern District of New York on behalf of twelve defendants argues that under Delaware law -- the state in which KPMG is organized as an LLP -- organizations are encouraged to provide support for employees and partners who are the subject of criminal and civil cases arising from their work on behalf of the business by advancing the costs of legal representation. Their brief asserts:
[T]he prosecution unilaterally pre-empted the policy determination not only of the legislature but also of KPMG itself. By making clear that KPMG’s survival as an entity could depend, even in part, on abandoning its practice – grounded in state law and public policy – to advance legal fees to employees who had acted on its behalf, the Government has uncomfortably expanded its role. It has gone from an investigator/prosecutor to a bullying behemoth, who demands as tribute the sacrifice of individuals and uses any means at its disposal to stifle opposition to its awesome power to prosecute individuals. In so doing, the Government has violated law and policy. It has undermined the public policy and legal admonitions of the state of Delaware; it has improperly interfered with the contractual relationship between KPMG and its partners; and it has also unjustifiably and intentionally hampered the KPMG defendants’ ability to defend themselves in this case.
The brief goes on to note that if a private party had tried to force another party into not paying the fees, it could constitute tortious interference with a business opportunity. The more difficult part of the argument is linking the government's conduct in having KPMG cut-off the attorney's fee spigot to a constitutional violation that could support dismissal of the indictment. They argue that the government's conduct interferes with the right to counsel and to a fair trial, but the assertion is a bit of a stretch. The brief relies heavily on the dissent in Caplin & Drysdale, a case involving the forfeiture of funds that would be used to pay attorney's fees. In this case, the defendants have the right to counsel of choice, and the issue is one step removed concerning the source of the funds for payment for that counsel when the government is not directly seizing the money.
Given the Supreme Court's aversion to enforcing the right to counsel of choice, I doubt a court will find a sufficient link between the government's conduct and the Sixth Amendment right of the defendants to permit dismissal of the indictment or ordering KPMG to resume paying the defendants' attorney's fees. Even if there is no constitutional violation from the Department of Justice's conduct, the view that an organization which pays the attorney's fees of its employees is somehow not cooperative with the government is misguided. I have beaten the drum before that the view of defense counsel as an obstacle or someone to be gotten rid of is flawed because the system is built around the availability of competent representation for both sides. Undermining access to counsel is not a benefit to the criminal justice system. (ph)
The FBI released its 2005 Computer Crime Survey on Jan. 18, 2006 (here). The Survey compiles the responses form over 2000 public and private organizations in four states, and contains the following "key findings":
- Frequency of attacks. Nearly nine out of 10 organizations experienced computer security incidents in a year's time; 20% of them indicated they had experienced 20 or more attacks.
- Types of attacks. Viruses (83.7%) and spyware (79.5%) headed the list. More than one in five organizations said they experienced port scans and network or data sabotage.
- Financial impact. Over 64% of the respondents incurred a loss. Viruses and worms cost the most, accounting for $12 million of the $32 million in total losses.
- Sources of the attacks. They came from 36 different countries. The U.S. (26.1%) and China (23.9%) were the source of over half of the intrusion attempts, though masking technologies make it difficult to get an accurate reading.
- Defenses. Most said they installed new security updates and software following incidents, but advanced security techniques such as biometrics (4%) and smart cards (7%) were used infrequently. In addition, 44% reported intrusions from within their own organizations, suggesting the need for strong internal controls.
- Reporting. Just 9% said they reported incidents to law enforcement, believing the infractions were not illegal or that there was little law enforcement could or would do. Of those reporting, however, 91% were satisfied with law enforcement's response. And 81% said they'd report future incidents to the FBI or other law enforcement agencies. Many also said they were unaware of InfraGard, a joint FBI/private sector initiative that battles computer crimes and other threats through information sharing.
(ph -- thanks to Vernon McCandlish for alerting me to the Survey)