Sunday, November 30, 2008

In the News and Around the Blogosphere

MySpace Related Case - Will the Verdict Stand?

The MySpace related case, a first case of its kind raises issues as to whether contract terms can serve as the basis for a violation of the Computer Fraud & Abuse Act (18 U.S.C. s 1030). For background information and the indictment, see here. Although there has been a verdict (no felonies), it is likely this case will be reviewed. See Ashley Surdin, Wash. Post, Woman Guilty of Minor Charges for MySpace Hoax. Scott Glover, LA Times, My Space Case Goes to Los Angeles Federal Jury raises the issue of whether this verdict will remain.

For a discussion of some of the issues raised here, see Derek Kravitz, Wash. Post, 'MySpace Suicide' Case Expands Web Law; Jennifer Steinhauer, NYTimes, Verdict in MySpace Suicide Case.

(esp) (w/ a hat tip to Gerri Moohr & Tiffany M. Joslyn, Research Counsel at NACDL’s White Collar Crime Project )

Addendum, Doug Berman, Sentencing Law & Policy, Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?

November 30, 2008 in Computer Crime | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 26, 2008

In the News and Around the Blogosphere

In the News and Around the Blogosphere

Bloomberg, Carlyn Kolker and David Voreacos, UBS Clients Go to IRS to Settle Swiss Account Taxes

Lynne Marek, National Law Journal, Larger Foreign Corrupt Practices Act Fines Ahead

John R. Wilke, Wall St Jrl, China Defends Price Fixing by Vitamin Makers

Adrian Walker, Boston Globe, FBI informant in bribe cases says more suspects are likely to surface

Del Quentin Wilber, Washington Post, Hearing Set Into Letter by Witness in Stevens Trial

Derek Kravitz, Washington Post, Ex-Interior Official Charged With Taking Payments

David Markus, Southern District of Florida Blog, Ben Kuehne Motions Hearing before Judge Cooke

(esp)

November 26, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2008

In the News and Around the Blogosphere

Sunday, November 23, 2008

In the News and Around the Blogosphere

350 People for Ben Kuehne

There were approximately 350 people at the fundrasier for Ben Kuehne this past week.   As this blog stated here, people usually keep their distance when someone is charged with criminal activity.  The opposite is happening here.  This is yet another indication that DOJ needs to re-evaluate this case. For background see here and here.

(esp)

November 23, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Conrad Black Writes

Conrad Black writes from a U.S. prison in Florida a piece titled, From my cell I scent the reeking soul of US justice.  It appears in the Sunday Times (UK).  Perhaps the most interesting aspect of his piece is his evaluation of the U.S. grand jury process.  I also recommend reading the comments following the column. If these comments are representative of thoughts throughout the world, then DOJ has a lot of work ahead on its international relations.  Interestingly, Doug Berman's Sentencing Blog here, is getting a different set of comments to this piece.

(esp)(w/ a hat tip to Brenda Rossini)

November 23, 2008 in Celebrities | Permalink | Comments (0) | TrackBack (0)

Fifth Circuit Looks At Loss in Context of Mortgage Fraud Case

The Fifth Circuit Court of Appeals in U.S. v. Goss, examined a sentence on a mortgage fraud case, affirming in part and vacating and remanding in part. The court noted how in cases "involving immovable real property, ... part, if not all, of the loan value was more likely recoverable,"  and actual loss should therefore be examined.  The court noted that "to determine intended loss, actual, not constructive, intent is considered."The court further stated:

"Obviously, application of an actual-loss method in this instance does not necessarily mean that the full collateral value for each loan will be deducted in every instance. An inflexible, bright-line rule for all of the loans at issue does not ensure the victims’ financial losses will be accurately assessed; and, therefore, it is necessary to examine each loan individually in order to determine the fair market value of the loan’s collateral and whether it should be deducted.

This loan-by-loan inquiry will allow the district court to properly determine how to treat the collateral, for each loan at issue, in order to arrive at the most accurate assessment of the lenders’ losses. Needless to say, this loanby-loan inquiry is fact-intensive, and should be shaped by weighing the appropriate factors in determining, at the time of sentencing, what, in the event of a default, would be the fair market value of any recovered collateral. This inquiry is likely to touch upon many of the issues presented in earlier cases. In this instance, factors that may impact the likelihood of recovery, the fair market value of the property, or both, include: the collateral is immovable; whether third parties exercise control over the collateral; whether, in the event of default, the collateral is, or might be, damaged before recovery; whether the collateral’s value was appraised or assessed at the time of sentencing; and whether there are financial or practical risks inherently associated with the collateral. (Of course, this list is not exhaustive; and no one factor is controlling."

(esp) (w/ a hat tip to Evan Jenness)

November 23, 2008 in Fraud | Permalink | Comments (1) | TrackBack (0)

Corporate Criminal Liability - What Will the Second Circuit Say?

This past week the Second Circuit heard oral argument in the Ionia case. Although there are many worthwhile issues in this case, a key one that merits consideration is the level of culpability of a corporation for the acts of a rogue employee.  Will the court take the step, as has been done in some civil matters, to insert a "good faith" defense into the legal landscape. (see background and briefs here) (see also Jenner & Block, Second Circuit Amicus Brief Argues for Change in Law of Vicarious Corporate Criminal Liability).   

Coverage of the hearing can be found here: Amir Efrati, WSJ Blog, Former Enron Prosecutor: Criminal Charges Shouldn’t Be So Easy; Silive.com (AP), Larry Neumeister, Lawyer urges court to curb corporate liability; Grant McCool, Reuters, Appeals court hears brief on corporate liability

(esp)

Addendum - Tom Kirkendall's Houston ClearThinkers here

Mark Godsey, Crim Prof here

Michael Thomas, The Daily Caveat here

November 23, 2008 in Judicial Opinions, Prosecutions | Permalink | Comments (0) | TrackBack (0)

AALS Private Screening on Human Trafficking

An Exclusive LexisNexis Private Screening at AALS

It is estimated that one million people, mostly women and children, are trafficked around the world each year, lured into involuntary servitude and sexual slavery. The gross and unjust economic exploitation of vulnerable people is a direct result of an absence of Rule of Law. As a company that does business throughout the world, LexisNexis is committed to promoting the Rule of Law. We are proud to sponsor the Somaly Mam Foundation’s efforts to combat and raise awareness of this epic problem. A very effective way to raise awareness and promote action is the film "Holly". Please join us for a private screening of this film on Tuesday, January 6th from 7-9pm at the San Diego Marriott Hotel and Marina (Salon A, North Tower, Lobby Level). Appetizers and refreshments will be served before the film. More details will be available at the AALS booth. Seating at the theater is limited to a maximum of 200. Please RSVP by sending an email to: carrie.irvin@lexisnexis.

November 23, 2008 in International | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2008

In the News and Around the Blogosphere

In the News and Around the Blogosphere

More on the Ben Kuehne Case

Dan Slater has a wonderful piece on the importance of the Sixth Amendment's Right to Counsel and the implications to this right when the government proceeds criminally against legal counsel. See Dan Slater, Wall St Jrl, Scales of Justice: The Right to Counsel vs. the Need to Bar Tainted Legal Fees  The article speaks directly to the Ben Kuehne case.  For background see here and here. But I have to wonder about a statement at the end of the article that seems to imply that cases to PDs aren't increasing, so therefore lawyers aren't being skeptical about taking these cases. Could it perhaps be that there hasn't been an increase of drug cases to the PD's office because there has been such a strong focus by the FBI on terrorism and immigration, and a movement away from drug cases? Drug cases have declined and no longer hold the top priority that they did in past years. TRAC notes here in a September 2008 report:

"Ranked 3rd was "Drug Abuse Prevention + Control-Prohibited acts A" under Title 21 U.S.C Section 841. Title 21 U.S.C Section 841 was ranked 2nd a year ago, while it was the 1st most frequently invoked five years ago. It was ranked 1st ten years ago and 1st twenty years ago."

So perhaps lawyers are really being deterred from taking these cases, and the fact that PDs are not seeing a decrease in cases in their office is an indication of just that.

(esp)

November 20, 2008 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2008

AG Holder?

Everyone appears to be dropping Eric Holder's name as the likely next Attorney General. See Ashby Jones, WSJ Blog, Report: Obama ‘Deeply Interested’ in Eric Holder as AG; LA Times, Looks like Eric Holder, ex-Clinton acting AG, will be Obama's AG

Some appear to be focused on what role he may have played in the Marc Rich pardon (see here).  But this focus is misplaced as the President has the power to pardon and there have been a lot more controversial pardons in the history of the U.S. (see William Jefferson Clinton, NYTimes, My Reasons for the Pardons). (I am still waiting to see President Bush's pardons -particularly as to whether Barney will be included - see here). 

Further if Holder was "neutral, leaning for" the pardon, as stated by former President Clinton, than perhaps he was in part following the DOJ guidelines that advise against using tax offenses with a RICO charge (see here). (This Indictment included a RICO charge). RICO excludes tax predicates (see here), so using other predicates to enhance a tax case to bring it to a level of a RICO was just plain wrong, and one should credit Holder if it turns out that his hesitation was for this reason. (see here)

But what needs to be asked is where Eric Holder stands today on the "Holder Memo." It's a memo that went through many changes after it left his desk. (e.g., Thompson Memo, McNulty Memo, Filip Memo).  The key question that needs to be asked now is where he stands on the attorney-client privilege and will he respect it. It also would be good to see if he will meet the wish list provided here.

(esp)

November 18, 2008 in Prosecutors | Permalink | Comments (2) | TrackBack (0)

Prosecutorial Power - Indicts VP

Prosecutors have enormous power.  They can pick and chose who to indict and for what crimes. The saying goes that a prosecutor can get a grand jury to indict a ham sandwich if the prosecutor wants that (see here for history of this phrase) -although some may claim otherwise. The prosecutorial discretion that comes with the charging power is often criticized, but prosecutors often contend that it is necessary for them to have such discretion.

The use of prosecutorial discretion is likely to be something that is examined in a Texas County of approximately 20,500 people (see here) as it looks like charges may be brought against one very high level official, and another who used to be in a top position.  See CNN, Texas Grand Jury Indicts Cheney, Gonzales; Huffington Post (AP),Cheney, Gonzales Indicted By South Texas Grand Jury; Christopher Sherman, Houston Chronicle (AP), Dick Cheney, Alberto Gonzales indicted in S. Texas -Charges related to alleged abuse of prisoners in federal detention centers; Dallas Business Journal, Grand jury indicts Cheney, former AG

(esp)

November 18, 2008 in Prosecutions | Permalink | Comments (0) | TrackBack (0)

In the News and Around the Blogosphere

In the News and Around the Blogosphere

Monday, November 17, 2008

SEC Complaint Against Owner of the Dallas Mavericks

An SEC press release reports that "[t]he Securities and Exchange Commission today charged Dallas entrepreneur Mark Cuban with insider trading for [allegedly] selling 600,000 shares of the stock of an Internet search engine company on the basis of material, non-public information concerning an impending stock offering."

Use of the word charge may leave the wrong impression. This is not a criminal matter, but rather a civil complaint. The complaint can be found here.

The SEC Litigation Release states in part:

"The Commission's complaint alleges that Cuban violated the antifraud provisions of the federal securities laws by engaging in illegal insider trading in the securities of Mamma.com Inc. ("Mamma.com"), a publicly traded Internet search engine company (now known as Copernic Inc.) based in Montreal, Canada. According to the complaint, in June 2004, Cuban sold his entire 600,000 share position in Mamma.com on the basis of material, non-public information concerning an impending PIPE (private investment in public equity) offering by the company. The complaint alleges that Cuban avoided losses in excess of $750,000 by selling his stock prior to the public announcement of the PIPE offering."

Mark Cuban, owner of the Dallas Mavericks' blog is located here.  You'll find that his lawyer is Ralph C. Ferrara of Dewey & LaBoeuf (DC) and that his lawyer is not letting him say much - one quote  -clearly a good move.  But it looks like this matter has been going on for awhile and the lawyer states "Mr. Cuban intends to contest the allegations and to demonstrate that the Commission’s claims are infected by the misconduct of the staff of its Enforcement Division." More is stated here. This is clearly a case to follow.

(esp)

Addendum - Liz Moyer & Andrew Farrell, Forbes Magazine, SEC Guns For Billionaire Mark Cuban

NYTimes, Dealbook, S.E.C. Accuses Mark Cuban of Insider Trading

November 17, 2008 in SEC | Permalink | Comments (0) | TrackBack (0)

In the News and Around the Blogosphere