Saturday, August 2, 2008

In the News and Blogosphere

Mary Flood, Houston Chronicle, Federal Judge Denies Recusal Request in Olis Case

Jason Cato, Pittsburgh Tribune-Review, Court Rules Names of Jurors Must Be Public; Paul Reed Ward, Pittsburgh Post-Gazette, Wecht Jurors' Names Must be Made Public

DOJ Press Release, Two Physicians Plead Guilty in International Internet Pharmacy Conspiracy   


August 2, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Thursday, July 31, 2008

Stringer - No Rehearing En Banc

With a few modifications to its opinion, the Ninth Circuit entered an order in United States v. Stringer denying the defendant's petition for rehearing and suggestion for rehearing en banc.

This means that the Ninth Circuit reversal of the district court dismissal of the indictments in the Stringer case remains the court's ruling. The district court had dismissed the indictments concluding "that the government had engaged in deceitful conduct, in violation of defendants' due process rights, by simultaneously pursuing civil and criminal investigations of defendants' alleged falsification of the financial records of their high-tech camera sales company." The lower court had also stated that "should there be a criminal trial, all evidence provided by the individual defendants in response to Securities and Exchange (SEC) subpoenas should be suppressed."  For discussion of the 9th circuit reversal of the district court opinion, see here.

(esp)(blogging from SEALS '08 in Palm Beach, Florida) 

July 31, 2008 in Civil Enforcement, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

In the News & Blogosphere

Dan Slater, WSJ Blog, Tenth Cir. Grants Review of Nacchio’s Insider Trading Case

Larry Neumeister, Yahoo News (AP), Court overturns convictions of NYSE specialists

Guest Bloggers, Sentencing Law & Policy, Former Newark, NJ Mayor Sentenced to 27 Months

Adam Lynch, Jackson Free Press, More Judicial Horseplay? (discussing Paul Minor Case)

Janet Novak & William P. Barrett,, Feds Hound Bodog

Del Quentin Wilber, Alaska Senator Stevens Pleads Not Guilty in Corruption Case

DOJ Press Release, Bennett Environmental Inc. Pleads Guilty to Defrauding the U.S. Environmental Protection Agency (Company to pay $1 million criminal fine)

Paul Donsky & Sierra Brown, Atl Jrl Constitution, Telecom chief found guilty of bribing Atlanta school official

Mike Robinson (AP), Yahoo News, Former head of Ill. prisons sentenced to 2 years

DOJ Press Release, Former Department of Interior Official Pleads Guilty to Conflict of Interest Charge

DOJ Press Release, Former Department of Defense Official Pleads Guilty to Making False Statement

(esp)(blogging from SEALS '08 in Palm Beach, Florida)

July 31, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2008

Contempt Citation Against Karl Rove

LATimes, Karl Rove in Contempt: Is it Justice or a Witch Hunt?

AP, House Panel Votes to Cite Rove for Contempt

James Rowley & Robert Schmidt, Bloomberg, U.S. House Panel Votes to Hold Karl Rove in Contempt

But one headline that can't go unnoticed is Dublin's RTE News - 'Bush's brain' faces contempt charge

(esp) (blogging from SEALS '08 in Palm Beach, Florida)

July 30, 2008 in Contempt | Permalink | Comments (0) | TrackBack (0)

Who Gets to Decide Whether to Continue An Investigation?

Back in November 2007, the blog (here) discussed the BAE investigation. Now, David Leigh, The Guardian has an article titled, "Law Lords: Fraud Office Right to End Bribery Investigation in BAE Case" that tells of a recent ruling that supports the right of the Serious Fraud Office (SFO) to cease an investigation. (see also Francis Gibb, Times Online, "SFO 'Courageous' in Dropping BAE Arms Probe ; Forbes -Thomson Financial,House of Lords clears SFO of 'unlawful' conduct in Saudi arms case) It seems the Serious Fraud Office made a decision to stop an investigation involving BAE.  The media notes that the reason for terminating the investigation was based on considerations of public interest, but that many were not happy with this decision.

In the United States, prosecutors have enormous discretion in deciding who will be investigated and for what, if any, possible crimes. In considering these discretionary decisions, the DOJ gives deference to executive power. Thus, it is possible that conduct might not be fully investigated if the result would hurt international relations.  The public has little recourse in the U.S. to contest the prosecutorial decision-making when an investigation ends.

Stopping an investigation can sometimes be detrimental to the person or entity being investigated.  Never having the chance to prove innocence can hurt the person or entity.  On the other hand, if the person or entity had possible criminal exposure, ceasing an investigation would likely be very welcomed.

(esp) (blogging from SEALS '08 in Palm Beach, Florida)

July 30, 2008 in International, Prosecutors | Permalink | Comments (0) | TrackBack (0)

In the News & Blogosphere

Tuesday, July 29, 2008

Uncle Ted's Indictment & No Perp Walk

The Indictment of Alaska Senator Ted Stevens can be found here. It is a seven count indictment that charges violations of the false statement statute, 18 U.S.C. 1001. In a statement to the press, Acting Assistant Attorney General Matthew Friedrich first described the Indictment.  His statement included the following:

"The indictment charges that, while he was sitting as a United States Senator between 1999 and 2006, Senator Stevens accepted gifts from a privately held company known as VECO, its Chief Executive Officer, and others. VECO was an oil field services company and operated on an international basis. VECO was one of the largest private employers in the State of Alaska.

"The gifts Senator Stevens is alleged to have received include substantial amounts of material and labor used in the renovation of a private residence, which Senator Stevens and his wife own, located in the town of Girdwood, Alaska. These renovations are alleged to have included the addition of a new first floor with multiple bedrooms and a bathroom, as well as a finished, full basement.

"VECO contractors and employees performed a significant portion of these renovations. For example, VECO and its employees and contractors are alleged to have provided architectural designs for the renovation; assisted in lifting up the residence and installing a new first floor; installed electric, plumbing, framing, heating and flooring materials; installed a first-floor, wrap-around deck; installed a plastic roof between the first- and second-floor decks; installed a heat tape system on the roof; and performed gutter repair and electrical work.

"The indictment also alleges that Senator Stevens received other gifts from VECO and its CEO, including household goods, furniture, a new Viking gas range, a tool-storage cabinet, and an automobile exchange in which Senator Stevens received a new vehicle worth far more than what he provided in exchange.

"According to the indictment, the total amount of gifts that Senator Stevens is alleged to have received over the duration of the offense is greater than $250,000.

"Also, according to the indictment, these items were not disclosed on Senator Stevens's financial disclosure forms, which he filed under penalties of perjury, either as gifts or as liabilities; and, further, that Senator Stevens did not reimburse or repay VECO or its chief executive officer for these items."

The Acting Assistant Attorney General was asked questions such as why this particular charge was selected as opposed to other statutes.  He made it clear in his response that there were no charges of bribery here.   

The false statement statute used in this indictment is a common one used by prosecutors.

In answers to questions, the Acting Assistant Attorney General did state that he thought the Senator "will be allowed to turn himself in.  He will not be arrested."  It is good to see that the Senator is going to be given a pass on being subjected to a "perp walk."  But perhaps this courtesy should be applied more often to others facing white collar charges.


July 29, 2008 in Prosecutions | Permalink | Comments (0) | TrackBack (0)

Senator Ted Stevens Indicted - Interesting Timing

Kate Phillips, New York Times, Senator Ted Stevens Indicted in Corruption Case (see also USAToday here; Wall St Jrl here).

The investigation has been for at least a year, an amount of time that is not unusual in white collar cases.  Prior indications of an investigation included the raid of Uncle Ted's home back in July 2007 (see here).

But the indictment of a Republican Senator at the same time as the release of a report on politicization of the department is interesting timing.  Is this indictment being issued today to show the public that the present DOJ will not play politics?  Is the timing of this Indictment to minimize the sting of the report that was just issued (see here)?  Or is it just happenstance that these two events occurred around the same time? And in the blogosphere it means that the indictment will be the top item and the report underneath.

More on the indictment to come.....


Addendum - Press Release of DOJ here.

July 29, 2008 in News | Permalink | Comments (6) | TrackBack (0)

DOJ Hiring Practices - Independent Investigation & A Good Faith Defense

Following the Report titled an Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program, that presented a scenario of appalling conduct occurring with respect to DOJ hiring practices, I blogged about the failure of the DOJ Compliance Structure (here). In addition to needing an effective compliance program, I stated that:

Kudos go to the Office of the Inspector General and OPR for issuing this Report.  But it is not enough. It is clear that DOJ did not have a proper compliance program in place, and still has insufficient measures to assure that conduct such as this will not happen again. It is also clear that an independent body needs to examine what has happened here and make recommendations as to how best to proceed.

We now have an additional report, as a result of an internal investigation, that speaks to improprieties extending beyond the Honors Program hiring practices. Carrie Johnson of the Washington Post, writes in an article titled, Internal Justice Dept. Report Cites Illegal Hiring Practices, detailing happenings in the immigration sector. (See also Eric Lightblau's piece in the N.Y.Times titled - Report Faults Aides in Hiring at Justice Dept).  This new report focuses significantly on a single employee - with her name in the title of the Report.  One has to wonder if DOJ is now saying, sorry we had a rogue employee and we are changing our ways.  The Statement by Attorney General Michael B. Mukasey on Report Issued by the Office of Professional Responsibility and Inspector General on the Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General, includes his statement that "[t]he report includes one new recommendation for institutional change, and I have directed the prompt implementation of that recommendation."

But that line doesn't and hasn't worked with DOJ for others in the corporate sphere.  The whole company is held liable, fines are imposed, and often we see a deferred prosecution agreement. Three things need to be considered here:

1. It is very clear that a special prosecutor needs to be appointed to do an investigation that extends beyond the internal investigations, despite the fact that the internal investigations exposed improprieties in the office. Isn't that what DOJ would say to a company that exposes problems and even reports them to the DOJ?

2. DOJ should join the growing number of people that advocate for adoption of a "good faith defense" in the corporate criminal area. After all, it is sometimes hard to control each and every employee.

3. There are long term ramifications of these findings and it can extend to specific cases.  If the people who secured the positions were political, then is it possible the decionmaking was also political?  And will future decision-making on election fraud cases be political in nature.  Without an independent investigation, trust cannot be restored.

(esp) (blogging from SEALS '08 Palm Beach, Florida)

July 29, 2008 in Prosecutors | Permalink | Comments (2) | TrackBack (0)

Monday, July 28, 2008

In the News

Alyson M. Palmer and Andy Peters, Fulton County Daily Report (subscription required) - Feds Make It Official, Indict Former Judge and Four Others

Scott Horton, Harper's Magazine, New Allegations of Prosecutorial Misconduct in the Siegelman Case

Joel Stashenko, National L J.,, Commission Head Defends Integrity of Spitzer Investigation

Washington Post, Former Lobbyist Pleads Guilty to Trying to Destroy Evidence


July 28, 2008 in News | Permalink | Comments (0) | TrackBack (0)

Sunday, July 27, 2008

Tax Shelters

Professor Camilla Watson of University of Georgia School of Law, speaking on a panel at the Southeast Association of Law Schools Conference (SEALS), discussed tax shelters and some of the recent criminal indictments related to tax shelters. She noted that they are "only as good as the ethics of those who put it together."   In looking at what academics could do to assist to insure an ethical environment she suggested putting the course of professional responsibility in the first year and moving aspects of professional responsibility into other courses, particularly business courses.

(esp)(blogging from SEALS '08 in Palm Beach, Florida)

July 27, 2008 in Tax | Permalink | Comments (0) | TrackBack (0)

Tell the Jury the Sentence?

Over at the BlueOregon, Rep. Chip Shields, a state rep. from Oregon raises the issue of whether a jury should be given information about the possible sentence facing the accused. He provides some pretty telling non-white collar examples of extraordinary sentences. Professor Doug Berman here, looks at these questions asking "is justice best served by keeping that information from them and having juries only decide guilt or innocence?"

The question is interesting in the white collar sphere.  What would have been the reaction of the jury if they knew that Jeffrey Skilling was going to get a sentence of 24 years, and how would the juries have reacted to the lengthy sentences given to Bernie Ebbers and the Rigases.  Would the jury have convicted if they knew the initial sentence, eventually modified, that the court imposed on Jamie Olis?

(esp) (blogging from SEALS '08 in Palm Beach, Florida)

July 27, 2008 in Sentencing | Permalink | Comments (0) | TrackBack (0)