Friday, November 14, 2008
The U.S. Supreme Court accepted certiorari in the case of Yeager v. United States. The issue presented is "[w]hether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts on which the jury failed to reach a verdict." For the Opinion from the 5th Circuit, the Petition for Certiorari, the Brief in Opposition, the Petitioner's Reply, and the Amicus Brief filed in support of the defendants, see Scotus Blog here.
See also Kristen Hays, Houston Chronicle, High court takes case of Enron Broadband defendant
In my My Wish List to President Barack Obama & The Next AG I mention the need for the next AG to "Conduct an investigation on cases such as former Alabama Governor Siegelman and Cyril Wecht and if politics played any role - do the right thing." But the need may be more pressing here. Adam Zagorin of Time Magazine has an article titled, More Allegations of Misconduct in Alabama Governor case.
Congressman Conyors, chair of the Committee on the Judiciary has written a letter to AG Mukasey that raises some important questions. More to come later.
Addendum - Ben Evans, Miami Herald (AP), Recused US Attorney Discussed Siegelman Case
We all have our wish lists of things we would like accomplished in this new administration. And when it comes to the administration of DOJ, it is easy to list many items such as matters related to GITMO, etc. So, limited to white collar crime issues - my two cents -
To the New AG -
- Focus on computer crimes and identity theft - they take time to investigate and prove, but the public needs some relief here
- Restore DOJ to being a non-politicized agency
- Provide better transparency, especially with items like deferred prosecution agreements - put them all online for everyone to see
- Mandate that all DOJ attorneys never ask anyone to waive their attorney-client privilege unless they have court approval for something like a crime-fraud exception
- Respect the right to counsel and allow those charged with crimes to have their attorney fees paid if the company and individual had a pre-existing contract or practice to do so
- Support efforts in Congress to pass a good-faith defense for corporations so that there is a strong incentive for companies to eradicate criminality from within the corporation
- Prosecute white collar offenders equally with no regard to their race, age, ethnicity, education, class, gender, national origin, disabilities, family status, religion, sexual orientation, or how much they paid in political support to a certain party
- Support efforts to bring sentences in line with those given in most civilized countries for white collar offenses
- Support revisions to statutes that will remove vagueness in statutes, like "honest services" in mail fraud, so that individuals are aware of what is a crime and what is not and will be deterred from committing the crime
- Spend time educating corporate America on what is permitted and what is a violation of law
- If you want to stop something you think is criminal, like backdating, then first put people on notice that if they engage in this conduct in the future they will be prosecuted
- Don't permit DOJ attorneys to use a parallel proceeding to secure evidence for a criminal matter
- Use a strict disciplinary system in DOJ if attorneys fail to abide by rules of professional conduct
- Develop educational programs for youths to teach them what is considered a crime with respect to computer usage
- Set up an independent board to give grants to the press for investigative reporting. After all, it is this type of reporting that uncovers many white collar crimes. But it needs to be independent with no government oversight - because the last thing needed is a government owned press.
- Support efforts to revise the Criminal Code - Right now we have a disorganized mess of statutes scattered every which way that pertains to criminal matters. Title 18 is supposed to be the criminal code, but one finds many criminal provisions in places you least expect
- Support efforts to get rid of statutes that should have been purged from the books years ago
- Support efforts to get rid of statutes that are duplicative - hitting a person for the same conduct once is enough
- Conduct an investigation on cases such as former Alabama Governor Siegelman and Cyril Wecht and if politics played any role - do the right thing
- Re-examine the Ben Kuehne case - should this really be prosecuted?
- Create a national task force to investigate the financial mess that we are in, but don't just prosecute as a reaction to the financial downfall - prosecute only the criminality that would be such irrespective of the market's drop
And to President Barack Obama -
- Appoint someone as Attorney General that will make all of this happen
- Commute Jamie Olis' sentence.
Readers - all yours -
Addendum from Readers -
Michael C. Durney - I would add only one thought: DOJ should reinstitute the old (circa 1960s-) rule of charging: The test is not can we indict, but should we indict.
John Wesley Hall, President of NACDL - Put restoring DOJ's credibility to the top of the list
Thursday, November 13, 2008
Is it really possible that certain areas of the country decline more white collar prosecutions than other areas? The Resource Management of US Attorneys' Offices - US Department of Justice Office of the Inspector General Audit Division issued an Audit Report dated November 2008. The Report provides some interesting numbers. Although there is no definition of white collar crime, to truly determine what is included and what is excluded from this category, the Audit Report provides a chart (Exhibit 4-5, p. 45) that shows that in 2003: 6100 white collar matters were filed, 4,575 were declined, and 1,533 were pending. Contrast this with 2007: 3,324 were filed, 798 declined, and 7593 were pending. The bottom line - a lot less cases were filed and a lot less declined.
Later exhibits in this report discuss specific districts. For example, the Southern District of Florida declines only 10.01% of its white collar crime cases. In contrast, the Southern District of West Virginia declines 41.27% of its white collar cases. So does this mean that if you commit a white collar crime in Florida, you have a much greater chance of the charges going forward?
See also Pamela A. MacLean, National Law Jrl, Report Criticizes Office That Allocates Resources to U.S. Attorneys
A DOJ Press Release states that three leading electronics manufacturers "have agreed to plead guilty and pay a total of $585 million in criminal fines for their roles in conspiracies to fix prices in the sale of liquid crystal display (LCD) panels."
Dan Slater, WSJ Blog, Kozlowski: Hard to Reconcile AIG Bailout With $6,000 Shower Curtain
Congressman William J. Jefferson receiving 57% of the votes in his bid for re-election to Congress (see here), may be facing a tougher issue as he lost his argument for dismissal of the criminal case pending against him, an indictment with conspiracy and substantive offenses. (see Indictment) (see here commentary on the Indictment). The district court had previously held that the grand jury proceedings and Indictment did not implicate the Speech and Debate Clause.
The Fourth Circuit Court of Appeals (opinion here) rejected Jefferson's contention that:
"the grand jury was improperly presented with evidence of his legislative acts and that such evidence was relevant to its decision to indict. He asserts that the Indictment thus contravenes the legislative immunity provided to him by the Speech or Debate Clause of the Constitution, see U.S. Const. art. I, § 6, cl. 1, and must be dismissed."
In rejecting Jefferson's claim that the case should be dismissed, the Fourth Circuit stated:
"we are satisfied that the district court, in conducting the pretrial proceedings, accorded Congressman Jefferson every substantive and procedural protection to which he was entitled. As the court explained in its Opinion, it decided to analyze the Excerpts and review in camera certain grand jury materials "because the Speech or Debate Clause protection afforded legislators is so important, and out of an abundance of caution." United States v. Jefferson, 534 F. Supp. 2d 645, 649 (E.D. Va. 2008) (emphasis added). After conducting its review, the court concluded that the grand jury had not considered any Speech or Debate Clause material. See id. at 654. The court acknowledged, however — and we agree — that the controlling authorities did not compel such a comprehensive review. See id. at 649. Under the facts of this case, however, the court’s decision to act as it did in assessing Jefferson’s Speech or Debate Clause Claim was within its discretion and entirely appropriate. With the foregoing principles in mind, we are content to reject Jefferson’s request for further review of the grand jury record, and we affirm the district court’s refusal to dismiss the Indictment."
But although he lost this battle, one that seldom is won in the courts, the real test has yet to be determined.
A press release of the US Attorneys Office for the Southern District of Florida tells of the Indictment of "a senior executive of a large Swiss bank with offices worldwide, including the United States." This individual "has been charged with conspiring with other executives, managers, private bankers and clients of the banking firm to defraud the United States."
The press release states that "according to the criminal indictment, between 2002 and 2007, [this individual] oversaw the Swiss bank’s cross-border private banking business that provided services to some 20,000 U.S. clients who reportedly concealed approximately $20 billion in assets from the IRS."
The Indictment only has one count and it is for conspiracy under section 371.
Indictment - Download Indictment.pdf
Wall Street Jrl Blog here
Southern District of Florida Blog, Exec UBS indicted in tax probe
Marisa McQuilken and Brian Katkin, Legal Times, The Name Game: Who's Going Where? - Washington insiders buzz about which lawyers will land in the Obama administration's top legal slots.
Lynnley Browning, New York Times, Indictments Said to Be Possible in UBS Inquiry
Corporate Crime Reporter, What Does it Take to Indict a Major American Corporation for Murder?
DOJ Press Release, Former Alaska Businessman Sentenced on Public Corruption Charges
Monday, November 10, 2008
- DOJ Press Release, U.S. Army Colonel and Lt. Colonel Convicted of Conspiracy for Role in Fraud Scheme in Al-hillah, Iraq
- Peter Page, National Law Jrl (Law.com) White-collar lawyers hearing from clients -Subpoenas from state AGs, letters from the SEC unnerve clients.
- Ari Shapiro, NPR, Justice Leader's Job: Renew A Battered Agency
- Sara Hansard, Investment News, SEC settlements could hit 3-year high
- DOJ Press Release, More Than $1 Billion Recovered by Justice Department in Fraud and False Claims in Fiscal Year 2008 -More Than $21 Billion Recovered Since 1986
- Dan Slater, WSJ Blog, Lawyer for Broadcom Co-Founder Pleads Guilty, Cooperates
Sunday, November 9, 2008
Tom Kirkendall, Houston ClearThinkers, The NatWest Three are finally going home
FCPA Blog, U.S. Law Firms Face China Bribery Probe
Dan Slater, WSJ Blog, What’s the Cost of Corporate Bribery? Siemens Sets Aside $1 Billion
Brian Krebs, Washington Post, Extortion Used in Prescription Data Breach - FBI Investigating Threat Against Express Scripts Customers
Press Release, Office of the Attorney General NY - Attorney General Cuomo Secures Guilty Plea from Home Improvement Contractors for Scamming Western New York Senior Our of More than $80,000
Anchorage Daily News (AP), Judge closes inquiry in Ohio corruption probe leak