August 9, 2008
In the News and Blogosphere
John Farmer Jr., N.J..com (Star Ledger), The spat over the mayor's sentence (discussing the sentencing of the former Newark Mayor)
DOJ Press Release, Nevada Landfill Operator Agrees to $36 Million Plan to Close Landfill Site
Debra Cassens Weiss, ABA Jrl Law News Now, How Monica Goodling and Kyle Sampson Worked the System
Amanda Bronstad, National L.J., Indictment of Katrina Lawyer is Challenged
Marisa Taylor, McClatchy Washington Bureau, Enron setbacks could hurt other white-collar prosecutions
John Pacenti, Daily Business Review, Law.com, Prosecutors Change Course on Money Laundering Charges Against Prominent Attorney
August 8, 2008
Detroit Mayor Jailed -Doing Legitimate Business But Violating Bail Order?
In an odd set of circumstances, the Detroit Mayor was jailed after leaving the country to do business in Canada. See Holly Watt, Washington Post, Detroit Mayor Jailed for Violating Bail Conditions The mayor has been the subject of a state prosecution, an outgrowth of what has been called a "text message scandal." And according to the Detroit Free Press he may have some new charges. See M.L. Errick, Jim Schaefer, Ben Schmitt & Joe Swickard, Kilpatrick faces felony assault charge after his night behind bars. Some thoughts:
1. A standard provision in most bail orders is that one can't leave the country. And whether one thinks they are guilty or not, once charged and on bail it is necessary to abide by the conditions of bail.
2. Detroit is mere minutes from the Canadian border, and his argument appears to be that he was doing business for the city. Should the need for this kind of activity been accounted for in the bail order?
3. If in fact more charges are added against the mayor, is this an appropriate time to add these additional charges?
Once charged with a crime, one has the reality that even though they have not been found guilty, and may never be, they are being punished and under restraint. In many ways this goes against the system of justice we advocate - one that requires proof beyond a reasonable doubt prior to punishment. But the pre-trial constraints can often hamper a person's activities and this is a clear example of just that.
August 6, 2008
Siegelman - Politics Everywhere
Check out Bob Johnson's article, Al.com (AP) "Siegelman Attorney Asks for Canary Investigation" There are clearly some interesting legal questions here. An attorney with DOJ recuses herself, but the question may be what this attorney did prior to the recusal, and whether there was any involvement after it. Without the documents that are in the hands of the government, defense counsel is at a loss to prove anything. Defense counsel in these type of situations can be placed in a "catch-22" position. They need the evidence to present their claim, but need some showing of the claim to be able to secure the evidence. But more importantly, should DOJ be the one investigating this case, or would it have been better if there was an independent investigation here. And if there is nothing to hide than perhaps an independent investigation would be best for all sides. And why is the name Karl Rove surfacing in this article, yet again.
August 5, 2008
Annual Survey of Supreme Court Decisions
At the upcoming ABA conference, the Criminal Justice Section will be sponsoring a program that reviews the Supreme Court's criminal decisions of this past term. The program is being held on Friday, August 8, 2008 from 3:45 - 5:15 P.M. in Conference Room L, Executive Conference Center, Sheraton, New York. The program chair is Professor Rory Little (Hastings), and the speakers are Robert Dean, Katherine P. Failla, Professor Julie O'Sullivan (Georgetown), and Hon. Stephen C. Robinson. For details, including cost, see here. I'd be willing to bet that the recent money laundering decisions will be something covered by this panel.
August 4, 2008
One Day Sentence Affirmed
The Ninth Circuit Court of Appeals affirmed a one-day sentence here. The case involved a plea to "several counts of health care fraud, embezzlement, and money laundering." The sentence was to be served at a facility that would allow the defendant to "work, pay restitution and visit with his then 11-year-old son." But the corrections center "would not house prisoners" so the court amended the sentence to "one day of imprisonment and three years of supervised release, with the condition that he serve 12 months and one day of his supervised release" at this center. The government unsuccessfully took this modification up on appeal.
Guest Bloggers at Sentencing Law & Policy here have analysis of this decision, including the strong dissent that like the majority interprets the recent Supreme Court decision in Gall. In the dissent, Circuit Judge Gould states:
"To provide for a mere slap on the wrist of those convicted of serious economic crimes, with no or virtually no time imprisoned as punishment, strikes a blow to the integrity of our criminal justice system. In the end, if not corrected, the majority’s approach will be dangerous to respect for our legal system. Can it be seriously maintained that wilful offenders who commit white collar crime, who steal intentionally hundreds of thousands or even millions of dollars, should receive no forced incarceration, while those poor and powerless criminal defendants who commit common larceny or theft often serve extensive hard time?"
The majority, in a footnote, lists the many sentences that have provided a like punishment in a white collar crime case. But more importantly, is it a "mere slap on the wrist" to brand a person for life as a convicted felon? And is this true when the convicted individual is being held up in society as felon who committed crimes such as money laundering? And in the case of a non-violent crime, should innovative sentences such as this be welcomed? Maybe part of the problem for the government is the charging of this conduct using so many different federal statutes.
No Recusal of Judge for Jamie Olis
Jamie Olis' motion to recuse Judge Sim Lake from his case was denied by Judge Sim Lake. The court found the motion untimely and insufficient. Here is one passage from the judge's decision:
"Olis states that when Shelby moved to Phoenix in 1997 the court gave Shelby a gift and told him that the court knew he would be back someday. However, Olis neither describes the gift nor the circumstances under which it was given. Since Olis fails to state facts showing that prior to giving Shelby the gift the court ever met Shelby socially as opposed to professionally in open court, and since the word “gift” covers a wide array of items including items that are given to professional acquaintances merely as souvenirs or symbolic gestures of good will, absent allegations showing that the gift was more than a souvenir or symbolic gesture of good will, Olis’ statement that over ten years ago the court gave Shelby a going-away gift does not support an inference that the court and Shelby shared a close personal friendship."
Wecht Appellate Argument
The appellate argument that Cyril Wecht should not be subject to retrial as a result of double jeopardy was heard by the Third Circuit Court of Appeals. For commentary on the oral argument see-
Howard Bashman, How Appealing here
Harold Hayes, KDKA, Appeals Court to Decide if Cyril Wecht Has Retrial here
Jason Cato, Pittsburgh Tribune Review, Panel criticizes Wecht Judge
Ramesh Santanam, Philadelphia Inquirer (AP), Wecht's lawyer asks appeals court to dismiss case
Paula Reed Ward, Pittsburgh Post-Gazette, Appeals judges hear Wecht's argument against new trial
Paul Minor - In or Out on Appeal - Government Says "No" Politics
Paul Minor's request to be released pending appeal is responded to by the government by cold language and language that perhaps warrants careful scrutiny (for background on this case see here). Here are two points that are particularly bothersome:
1. The government's brief (see below) with respect to the medical condition of Minor's wife displays a sad state for our legal system. The brief, in speaking to whether the court should consider releasing Paul Minor to care for his wife, states that this "certainly evokes sympathy, it is not a legal basis for his release from prison." Basically, the government is saying that compassion does not play any role in how we adjudicate matters. To have third parties bear the consequences and be punished for the actions is harsh punishment for individuals who committed no crime. To say that the government does not have discretion to insert compassion into the process is also bothersome. It wasn't in the law to work the sentences for the Fastow's to account for the care-taking of their children. (see here) Is there a different standard used for compassion when it comes to those who cooperate with the government and those who proceed to trial?
2. The government's response includes statements that this case was not a political prosecution ("nothing more than wild speculation and innuendo unsupported by the evidence"). Attorney Abbe David Lowell, in footnote 4 (how appropriate for it to be this number), says it all when he points out that the government seems to be pre-judging a matter that is under investigation. This is a clear indication that an independent investigation of this matter is warranted. (see here)
Government's Opposition to the Motion of Defendant-Appellant Paul S. Minor for Release pending Appeal -
Defendant-Appellant Paul S. Minor's Reply Brief in Support of Motion for Release Pending Appeal -
Upcoming Conferences & Post Conference Materials
ABA Criminal Justice Section, Sentencing Advocacy, Practice, and Reform Institute - Washington DC - October 24
ABA National Institute on Securities Fraud - Washington DC - October 2-3
NACDL & Georgetown, Defending White Collar Crimes - Washington DC - November 6-7
ABA, Section for Litigation & Continuing Legal Education, Keeping It Real: Making the White Collar Defendants Blue Collar, post conference CLE material here
FCPA - Strafford -Foreign Corrupt Practices Act in Russia - Compliance Strategies Given Russia's Unique Cultural and Governmental Intricacies- For information here
National Association of Sentencing Commissions Annual Conference -- Building Bridges: Philosophy, Policy & Performance- For information here.
In the News
Amanda Bronstad, National Law Journal, Law.com, Prosecutors recommend One Year of Probation for Milberg Kickback Defendant
Liz Rappaport, WSJ, Treasury Ex-Official Is at Center of UBS Probe