Monday, April 30, 2007

Conrad Black Trial Continues

Conrad Black's trial continued today.  For some updates on the trial of the former head of Hollinger International, check out MacLeans here.  Richard Siklos of the NYTimes reports on a contentious cross-examination that occurred today.  It sounds like a common cross-examination scenario may have played out --  what could the witness actually remember, was her memory faulty, and could she be relied upon for statements made in direct examination. One item to note from the article is that defense counsel was placing paragraphs of interest on a screen in the courtroom.  It is clearly becoming more and more popular in white collar cases to see the use of graphics in the courtroom.  Courtroom technology is clearly an important part of presenting a technical white collar case.

(esp)

April 30, 2007 in Prosecutions | Permalink | Comments (0) | TrackBack (0)

NACDL White Collar Crime Conference - Part III

Stephanie Martz, White Collar Crime Project Director at the National Association of Criminal Defense Lawyers (NACDL), guest blogs a six part series on the recent White Collar Crime Track at the NACDL Cincinnati Conference:

Session 3: Sentencing Update – White Collar

Amy Baron-Evans, Sentencing Resource Counsel for the Federal Defenders, did a terrific presentation on both new amendments to the Guidelines and case/litigation developments. She began by noting that after Booker, there is no need to wait until Congress finalizes the proposed Guideline amendments that will be sent to the Hill on May 1 in order to argue them.

One of the most relevant new Guidelines for white collar lawyers is that implementing the Crime Victims Rights Act. Baron-Evans noted that while judges have rejected definitions of "victims" that include plaintiffs in civil class-action suits (derivative suits are harder, though), victims of acquitted or uncharged conduct, and certain types of collateral victims, lawyers should be chary of attempts to push the definition further.

Another helpful new (proposed) Guideline is the policy statement in 1B1.3, "Sentence Reduction." Courts may now consider terminal illness (which greatly expands the old "death rattle" standard); permanent medical conditions that require care by someone else, including age-related deterioration; and situations in which the only family member capable of caring for a minor has died or become incapacitated (in the past, foster care was often considered good enough).

In terms of litigation, Baron-Evans repeated the message that I’ve often heard her impart but that bears constant reminder because it is so important: Always go back to the "shalls" in 3553 – especially, that a sentence "shall" not be greater than necessary to meet the goals of criminal punishment. In that vein, white collar lawyers should be mindful of raising – starting with the pre-sentence report, that all-important document that determines so much – the factors that predict reduced recidivism: age, stable employment, education level, marriage, abstinence from drugs, first-time offender status, poor health, and emotional problems that are treatable. Lastly, remember that no statute requires the government alone to move for substantial assistance departures.

(sm/ posted and link by esp)

April 30, 2007 in Think Tank Reports | Permalink | Comments (1) | TrackBack (1)

Sixth Conviction in P2P Case

A Department of Justice press release reports that "[a] sixth defendant has pleaded guilty in connection with Operation D-Elite, the first criminal enforcement action targeting individuals committing copyright infringement on a peer-to-peer (P2P) network using BitTorrent technology."  The release states that:

"Operation D-Elite targeted leading members of a technologically sophisticated P2P network known as Elite Torrents. At its height, the Elite Torrents network attracted more than 133,000 members and facilitated the illegal distribution of more than 17,800 titles—including movies, software, music and games—which were downloaded over 2 million times."

(esp)

April 30, 2007 in Computer Crime | Permalink | Comments (0) | TrackBack (0)

Sunday, April 29, 2007

An Appearance of Impropriety

When a judge has a potential conflict, or when there is even an appearance of impropriety, one often finds the judge recusing him or herself from the case.  But this time it isn't a judge, and we also are not seeing a recusal.  Rather, we are seeing a full announcement of an investigation by the same branch that is investigating the investigator.  According to the Washington Post, Special Counsel Scott J. Bloch  has decided to investigate the Inglesias matter as well as other hot items in the news recently. But the question may be whether he should be the one charged with this important investigation.

(esp)

April 29, 2007 in Investigations | Permalink | Comments (0) | TrackBack (0)

Bush Official Resigns - Call-Girl Scandal

Yahoo News reports of a recent resignation of a Bush official titling the article, Bush Official Resigns Over Escort Links.

(esp)

April 29, 2007 in News | Permalink | Comments (0) | TrackBack (0)

NACDL White Collar Crime Conference - Part II

Stephanie Martz, White Collar Crime Project Director at the National Association of Criminal Defense Lawyers (NACDL), guest blogs a six part series on the recent White Collar Crime Track at the NACDL Cincinnati Conference:

Panel II was on "Parallel Proceedings." Barry Pollack of Kelly Drye Collier Shannon LLP, also an NACDL board member, moderated.

He started with the issue of the government’s using a parallel proceeding as a stalking horse. Chuck Ross, of Charles A. Ross & Assoc, LLP in NY, addressed this issue – can you smoke out whether there is a prosecutor involved? United States v. Stringer, a case two years ago from Washington state, does give you some guidance as to questions you can pose as defense counsel. You can craft formal requests of the out-front civil regulatory body, such as, do you intend to do (any of the stuff that the court in Stringer ultimately found so offensive). One does, however, need to be careful that you don’t invite scrutiny that you don’t have already. Might be a difference among agencies – the SEC tends to work more hand-in-glove with prosecutors than, say, the FEC.

Critical question: Once you have parallel proceedings in the open, do you move to stay the civil proceeding? Jack Fernandez, of Zuckerman Spaeder in Tampa, FL, said there are two schools of thought. In a civil proceeding, you could get discovery that you wouldn’t otherwise get. But you need to get protection for what you don’t want to disclose, namely, your client’s testimony. It might boil down to whether your client can afford to take the Fifth. In most cases your client really needs to take Five; this militates in favor of a stay. Seek a stay if you have a client who literally can’t afford to take Five (would lose legal fees) or is a high-profile or public figure.

Can you even get a case stayed during the criminal investigatory stage, pre-charging? Fernandez: Seek it especially if it’s private civil litigation, but you probably won’t get it. Ross said he recently did get a stay in such a case (private class action suits brought against client, stayed during criminal investigation – a knowledgeable and conscientious magistrate judge).

Interesting twist on an evergreen topic: What is the impact of the McNulty Memo/pressure to waive on parallel proceedings? Carol Elder Bruce, a partner at Venable in Washington, DC (and former independent counsel in the Bruce Babbitt case – as Pollack noted, one of the few to decide there was not evidence to warrant an indictment), answered this question. She began by noting that for years, lawyers for corporations (including herself) felt compelled to tell corporations to waive if they could – for notes of witness interviews, etc. -- because of the incentives built into DOJ policy. The key to the whole waiver process is that the government gets individual statements that it might not otherwise get. But beyond that, "selective waiver" – the obvious antedote to the parallel proceeding issue – has rarely been accepted by courts because it violates the sword/shield principle behind the privilege. In re Qwest Communications in the 10th cir. is a recent example.

(sm/ links and posting by esp)

April 29, 2007 in News | Permalink | Comments (0) | TrackBack (0)