White Collar Crime Prof Blog: September 14, 2008

Defendants are not always successful in KPMG related cases before Judge Kaplan. The four remaining defendants in the case found that out this past week when their claims of due process violations were denied.

The issue is a fascinating one, and one previously seen in cases such as Scrushy and Stringer - the sharing of information in a parallel proceeding. The court held that "[i]t is well-established that as a general rule, '[t]he prosecution may use evidence acquired in a civil action in a subsequent criminal proceeding unless the defendant demonstrates that such use would violate his constitutional rights or depart from the proper administration of criminal justice.'"

In denying the defense motion to dismiss the case, the court held that a reliance on other cases was "misplaced" in that in each of the cases cited by the defense, "the court emphasized that (1) there was no bona fide civil investigation, and (2) the defendant was deceived by the government during the civil investigation." With "no such allegations in this case" the court denied the defense motion to dismiss.

Memorandum and Order - Download 20080910_order_re_6103_tj252.pdf

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September 15, 2008 in KPMG, Tax | Permalink | Comments (0) | TrackBack

Ted Steven's Discovery Issues

So what is happening with the forthcoming trial of Alaska Senator Ted Stevens? See Erika Bolstad, Anchorage Daily News, Stevens Loses Bid to Throw His Case Out of Court. He's getting the discovery for trial, but it was a mess. See Erika Bolstad, Anchorage Daily News, Judge orders that Stevens' lawyers get pile of paper data

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September 15, 2008 in Prosecutions | Permalink | Comments (0) | TrackBack

September 14, 2008

Sarah Palin's Discovery Issue

Troopergate, as the investigation has been termed by press and politics, raises the question of whether Sarah Palin abused her power as Governor. A lawyer is now representing her. See Lisa Demer, Anchorage Daily News, Private lawyer hired to represent Palin in Monegan inquiry. And her lawyer wants the discovery from the individual appointed by the legislature to do the investigation, but this lawyer is also saying that this matter should be handled by the state's 3-person personnel board. Are you entitled to discovery from the jurisdiction that you are claiming does not have jurisdiction? And then there is the issue of the subpoenas. Or will all the witnesses now be cooperating? Wall Street Jrl, Washington Wire, Troopergate’ Subpoena Showdown May Be Averted.

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September 14, 2008 in Investigations | Permalink | Comments (0) | TrackBack

Upcoming Sentencing - General Re Related Case

The defendants found guilty following a reinsurance contract between AIG and General Re, contracts that the the government argued made it appear that (1) "General Re had transferred approximately $100 million in insurance risk ... to AIG when in fact, no real insurance risk had been transferred; (2) General Re was Paying AIG $10 million in cash 'premiums' when, in fact, General Re never would be out on the transaction; and (3) General Re had offered the transaction to AIG when, in fact AIG offered the transaction to General Re." Sham deals and side-deals form the basis of the criminality alleged by the government. And with convictions in hand, the government is moving to sentencing.

The government has filed its sentencing memo and so too the defendants. The ball now rests with the judge. The disparity is great - with one side focusing on the offender loss and computing numbers and another looking at a first offender with a truly stellar life record. It is fascinating to see in the government's sentencing memo, the admission that there can be more than one way to compute the loss. The government presents two different ways. Should a sentence for a crime be based on mathematical calculations that by the government's own admission are subject to multiple approaches? The real showdown here is with the U.S. Sentencing guidelines.

Government's Sentencing Memo - Download us_sentencing_memo.pdf

See also Douglas McLeod, Sentencing Fight Looms in Finite Case

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September 14, 2008 in Sentencing | Permalink | Comments (0) | TrackBack