July 12, 2008
Recent Indictment - Alaska State Senator
DOJ Press Release - Alaska State Senator Indicted on Public Corruption Charges - "[A] current member of the Alaska State Senate, was indicted on charges arising out of a federal investigation into public corruption in the state of Alaska." It's a two count indictment - one count of bribery and one count conspiracy.
(esp) (blogging from Dublin, Ireland)
July 10, 2008
Acceptance of Responsibility Needs to Be Timely - Attorney-Client Privilege
Why is it that immediately before the legislature is about to make a change that will affect DOJ policy, the DOJ steps in to say - we'll make a change, no need for you Senators to step into this matter. The problem with this approach is that the cosmetic changes that DOJ then makes usually will not resolve all the issues being considered by the congressional committee. And more importantly, where was DOJ when everyone was shouting that change was necessary. DOJ argues that the criminally accused needs to accept responsibility timely. But their failure to act timely in changing policy -- and then announcing the changes just before the legislature acts -- is disturbing.
The latest scenario involves the attorney-client privilege and the famed McNulty Memo, which in prior lives resembled the Holder Memo, then the Thompson Memo, followed by the McCullum revisions. The latest is that Deputy Attorney General Mark Filip sent a letter to Senators Leahy and Specter outlining changes that will be made by DOJ.
The letter states that in the last 18 months DOJ has not approved any attorney-client privilege waivers in the corporate arena. If that's the case, then why not just change the law so the problems of the past never happen again?
The letter provides that cooperation will be measured by facts and evidence and not by waivers. But who will provide the oversight to make sure that this actually happens in the U.S. Attorney offices across the country?
And why doesn't the letter speak to Category I waivers? Will there be no changes here?
And after listing some suggested changes, changes that could probably result in a new Memo, the Filip Memo, the Deputy Attorney General states that "I have come to the conclusion that the above changes to the Principles are preferable to any legislation, however well intentioned and diligently drafted, that would seek to address the same core set of issues."
But why is it preferable for DOJ to make the changes? Is it because it will be easier for DOJ?
Somehow I have a feeling that this letter will not pacify advocates for the Attorney Client Privilege Protection Act.
Letter From Deputy Attorney General Mark Filip -
What Others Are Saying:
Pedro Ruz Gutuerrez, Legal Times, AG Mukasey Hints at Revision of McNulty Memo, Spars With Senators at Hearing
Dan Slater, WSJ Blog, DOJ: No, No, Don’t Worry About It, Senator. We’ll Fix the McNulty Memo
(esp) (blogging from JFK Airport)
July 9, 2008
In the News
Kevin Diaz, Star Tribune.com, Scams use dead doctors' IDs
U.S. Attorney, Southern District of NY Press Release, U.S. Government Contractor Arrested for Participating in Scheme to Steal Fuel from Camp Liberty, Baghdad, Iraq
July 8, 2008
11th Circuit Grants Rehearing En Banc in Mail Fraud Case
The 11th Circuit Court of Appeals granted a rehearing en banc in a case involving a mail fraud issue. (see here) The initial panel had reversed and remanded 5 counts in a case where the defendants were "convicted of conspiracy, mail fraud, money laundering, and interstate transportation of money obtained by fraud." The panel had also sent the entire case back for re-sentencing as a result of this holding. (see here) The decision to go en banc vacates that ruling, leaving the matter for review by the entire circuit court.
One issue likely to be discussed is the pattern jury instruction, which states that a "scheme to defraud" is "any plan or course of action intended to deceive or cheat someone out of money or property by means of false or fraudulent pretenses, representations, or promises." Should the word "someone" be replaced with language that requires a reasonable person standard? Prior cases emphasize the importance of requiring that the scheme be "intended to deceive or cheat a person of ordinary prudence and comprehension." (see here)
In the News & Blogosphere
Joe Milicia, San Diego.com (AP) - Adviser gets 12 years in prison in Ohio fraud case
Marcia Coyle, National L.J., A Crucial Quest for New Look at Liability- Corporate Criminal Standards at Stake (subscription required)
M.L. Elrick & Joe Swickard, Detroit Free Press, Strategy in Text Scandal a Risky One for Worthy- Kilpatrick's Denial of Affairs Debatable (Blog Editor Emeritus - Peter Henning - discusses the problems that arise when you have ambiguity in the questions being asked)
DOJ Press Release - Bristol-Myers Squibb Agrees to Clean Air Act Upgrades
Lawrence Hurley, Daily Journal - DOJ Considers Changes to Waiver Policy- Senators Press Agency for Solution to Privilege Issue (subscription required); see also Lawrence Hurley, Washington Briefs, Leahy Reveals Discussions With DOJ Over McNulty Memo
July 6, 2008
Paul Minor's Appellate Brief
The Paul Minor case is an intriguing one. When prosecutors were unable to secure convictions on the first try, they came back for a second shot. And according to the recently filed appellate brief, this time the rulings were different and the defendant had a tougher road. Abbe David Lowell's 28,816 word brief presents an interesting contrast between trial one and trial two. The Appendix to this brief charts some of the differences.
Minor, a trial lawyer and a leading one at that, was accused of engaging in "fraud, bribery, and racketeering when he provided loan guarantees to three Mississippi state court judges who were running for office." A key issue on appeal is whether there was a quid pro quo and whether the jury received an instruction explaining this aspect of the law. The appellant argues that "[a]t the first trial, the court instructed the jury that the government's case required a finding of quid pro quo, yet it refused to provide that same instruction in 2007." The brief goes on to note that the bribery standards were, however, used for sentencing. And here is the classic line from this brief - "It was as if the indictment was the government's accordion, contracting at trial to allow the government to obtain a conviction, and then expanding at sentencing to inflict the greatest punishment on Mr. Minor."
Appellate Brief -
See also Scott Horton's Harper's Magazine - A Minor Injustice: Why Paul Minor?
The Wecht Case Status - Tailgate Party
Prosecutors appear to be gearing up for a retrial in the Cyril Wecht case (see here). In Washington, D.C., a committee is scrutinizing this prosecution (see here). And clearly a lot has happened in this case. (see here) In the meantime the accused and some jurors from the first trial are at a tailgate party. See Jason Cato, Pittsburgh Tribune Review, Tailgate party reunites Wecht, jurors.
Day Three of the National Institute on Cyberlaw
Whitney Scott - A 3L at Stetson University College of Law
On the third day of the ABA National Institute on Cyberlaw, the first session was an overview of Digital Evidence and Documents Ethics. The panelists discussed how metadata ought to be treated in discovery, the implications of stamping every attorney email, "Privileged and Confidential," and the fact that only Adobe versions 8 or 9 have actual redaction capability.
The panelists and audience also made some recommendations on how to advise clients to deal with email. First, attorneys should remind clients to put nothing in email that they wouldn’t want the whole world to see. Clients should also avoid email reply chains.
The second session addressed the criminal aspects of identity theft, including financial records, data mining, and online threats. The panelists defined and gave examples of the various methods used including botnets, packet sniffers, and data breaches. There are several federal bills pending that address identity theft and data breaches, including a bill that would allow victims of identity theft to sue the thief for the victim’s loss of time to deal with the identity theft. The panel was also asked about the future of identity theft. The panel answered with possibilities ranging from cell phone attacks to vulnerabilities in a personal computer resulting from file sharing. The panel also mentioned that they foresee future policy taking into account the impact of identity theft on individuals and business, harmonization of privacy legislation and policy, and more cooperation between the various agencies who are dealing with identity theft.
The afternoon breakout session on Computer Crime and Procedure dealt with examples of various methods of computer crime activity, some possible defenses, and the latest hot issues. Professor Orin Kerr spoke on these hot issues and said that the top three are how the Fourth Amendment applies online, the prosecution of child pornography, and the new use of 18 U.S.C. 1030 to prosecute in the MySpace cyberharassment case.
What I think was the most interesting topic at the Cyberlaw Institute was the last session on the future of cyberlaw. The focus was on online virtual worlds such as Second Life and World of Warcraft. There are many others and distinctions were drawn between worlds where users create things and can have some ownership interest in those things, and worlds in which things in the world are already created and are simply interacted with by the players. This results in different kinds of law that apply to virtual worlds. Real world law will apply in some circumstances and issues will arise concerning jurisdiction and conflict of laws. End user license agreements create another kind of law, and then there is law that is created within and applies to violations that occur only in the virtual world. There is a criminal presence in the virtual worlds. The panelists described such offenses that have occurred, such as theft, fraud, money laundering, drug offenses, pornography and child pornography, and even virtual rape. The panelists also said that the FBI, the National Security Agency, and other law enforcement agencies do maintain a presence on virtual worlds.
Future trends to watch for regarding virtual worlds are the possibility that acts done online would be attributed to the real person behind the avatar, the interconnectivity of different virtual worlds such as SIMS Online and Second Life, and the use of virtual worlds for work, training, and social interaction. One of the panelists, J.P. Allen, offered his blog website on which he promised to post a slideshow on virtual worlds and some informative links. The link is here.
Overall the institute was a great crash course in cyberlaw and I am very glad I attended.