December 5, 2008
In the News and Around the Blogosphere
Paula Reed Ward, Pittsburgh Post-Gazette, Buchanan doesn't plan to step down as U.S. attorney
Harvey Silverglate, National Law Journal, Eric Holder - Remember the memo
Claire Cain Miller, New York Times, S.E.C. Charges a Venture Capitalist With Fraud
Emily Bazelon, Slate, Lori Drew Is a MeanieThe problem with prosecuting cyber-bullying ( w/ a hat tip to Tiffany M. Joslyn)
Michael Sasso, Tampa Tribune, Lawyers Help U.S. Millionaires In Swiss Bank Probe
December 4, 2008
The Pardon Watch
Many people are glued to the news watching to see who will receive the holiday pardons, and the commutations of sentences too, as President Bush leaves office. Many have their hopes up that their names will appear on the list. Will it be names that have appeared in the news like: Conrad Black, former Governor Ryan, Michael Milken, Bernie Ebbers, or Former Rep. Randy "Duke" Cunningham?
President Bush should not be ashamed to grant pardons and commute sentences as he leaves office. But which cases deserve this treatment is the question. Picking out friends and political cronies is just plain wrong.
Good candidates for a reduction of sentence are those who received harsher sentences because they were victims of a public cry for retribution in a time when people were reacting to extraordinary surrounding events. CEOs who received long prison sentences when the business took a downturn, those receiving astronomically high sentences in the mortgage fraud crisis, John Walker Lindh (one has to wonder what tactics were used when he was brought to the US), and others may fit this category as deserving of a reduction in sentence. But equally persuasive are those who have no constituency and remain in prison because of sentencing guidelines that did not account for their motive, or failed to notice that they received no benefit. The women who were carrying drugs out of a misguided love for someone who was using them as a mule, are among the cases that need examination.
It may be easy for President Bush to say, I don't need this hassle, and just leave without pardoning folks. But, hopefully, he will use his power wisely to correct injustices that remain on the books.
Check out this interview with Margy Love in the National L.J., See Marcia Coyle, A leading legal authority on pardons talks about the need for transparency — and how to get to the top of the list
Addendum, Yahoo News (Reuters) Martha Graybow & Randall Mikkelsen, Ex-WorldCom chief Ebbers seeks clemency from Bush
December 3, 2008
NACDL Files Amicus Brief in Boyle Case
The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief in the RICO case, Boyle v. United States, a case before the Supreme Court. It is argued that,
"This Court should reverse and hold definitively that a RICO enterprise requires structure apart from a random association of individuals to commit crime. RICO did not and could not create a federal felony for “a pattern of racketeering activity.” If an alleged RICO enterprise need not have structure, then the statute’s explicit enterprise requirement is meaningless."
For background and commentary on this issue, see the prior post here.
In the News and Around the Blogosphere
CNN Money.com (Dow Jones) - Departing US Atty Garcia: Keep Focus On White-Collar Crime
Phillyburbs.com (AP), Wecht attorneys to ask judge for fraud dismissal
Kyle Whitmire & Adam Nossiter, NYTimes, Birmingham Mayor Accused of Trading County Deals for Cash and Clothes
Review & Outlook, WSJ, Tax Fraud Finale -Justice gives up its misbegotten tax case.
Kelly Thornton, Voice of San Diego.org, Without Lam, U.S. Attorney's Office Takes Different Tack
December 1, 2008
White Collar Prosecutions Continue to Drop
The August data from the TRAC Reporting System is out, and white collar prosecutions continue to decrease. From the previous month it is down -1.4, from a year ago -2.9, and from five years ago -19.5. See here.
Interestingly, the statistics are not always decreasing when it comes to the number of convictions. Although there has been a -6.3 drop from last month, for one year it is up .1 and for five years the conviction rate is up 2.7. See here.
According to the TRAC Reporting System, the top charge being used for white collar prosecutions is bank fraud and it is also the top crime listed for convictions. It is not surprising to see the Fraud-Financial Institution area as being the highest area of those items included as white collar crimes. (see prior discussion here)
(esp) (w/ disclosure that she is a B.S. graduate of Syracuse U.- home of the Trac Reports).
In the News & Around the Blogosphere
Amir Efrati, WSJ Blog, Government Throws in the Towel on KPMG
Eric Lichtblau & David Johnston, NYTimes, Pardon Is Back in Focus for the Justice Nominee
Del Quintin Wilber, Washington Post, Jury Selection Begins in Case Connected to Abramoff
Del Quintin Wilber, Washington Post, Judge Postpones Hearing on Witness in Stevens's Trial
The Latest on the Cyril Wecht Case
Olis' Petition for Habeas Corpus Denied
Judge Sim Lake ruled on Jamie Olis' habeas corpus petition, and the 81 page order is not favorable for Olis. The court concluded that "Olis' motion to vacate, set aside, or correct sentence should be denied, the United States' motion for summary denial should be granted, and Olis' motion for reconsideration should be denied." The court also denied Olis a certificate of appealability. For background see here, here, and here. As previously noted, the court refused to allow an amicus brief to be filed by Professor Robert Weisberg. The court concluded "that Olis is procedurally barred from raising this claim under section 2255 because he has failed to establish the prejudice prong of the cause and actual prejudice standard by showing that but for the government's interference with Dynegy's commitment to advance funds for the cost of his defense he might not have been convicted."(p. 25)
Although the court ruled against Olis, there are some fascinating findings in this 81 page Order. For example,
1. " The court is persuaded that Olis has established cause for not having raised his claim that the government wrongfully interfered with his ability to fund the defense of his choosing on a prior occasion because neither he nor his counsel possessed a factual basis that would have allowed them to raise it earlier." (p. 25)
2. Yates, Olis' lawyer sued Dynegy when they stopped paying his legal fees. The court, in a section titled "undisputed facts" states:
"During litigation of this lawsuit against Dynegy, Yates learned that Olis' prosecutors, including the former United States Attorney for the Southern District of Texas, ...had pressured Dynegy to stop advancing funds for Olis' defense." (p. 16-17)
3. The Order describes in detail just how far the prosecutors went to make certain that Dynegy was not paying Olis' attorney fees. They even went so far as to request the Illinois statute from outside counsel to the company that pertained to payment of attorney fees and then instruct that counsel that "[w]e read the Illinois law and it seems Dynegy isn't obligated under [the] Thompson [memorandum] to pay the Attorneys' fees." (p. 16-17)
The Order - Download order_denying_habeas_corpus.pdf
November 30, 2008
In the News and Around the Blogosphere
Former Governor Don Siegelman remains in the news. See Tuscaloosa News, Case could rip lid off Department of Justice; Kim Chandler & Mary Orndorff, Al.com, Three judges with experience in politically charged cases named to hear appeals of former Alabama Governor Don Siegelman and HealthSouth founder Richard Scrushy
Mike Scarcella, BLT Blog, The Defense Calls to the Stand ... a Prosecutor? (discussing Ted Stevens case)
MySpace Related Case - Will the Verdict Stand?
The MySpace related case, a first case of its kind raises issues as to whether contract terms can serve as the basis for a violation of the Computer Fraud & Abuse Act (18 U.S.C. s 1030). For background information and the indictment, see here. Although there has been a verdict (no felonies), it is likely this case will be reviewed. See Ashley Surdin, Wash. Post, Woman Guilty of Minor Charges for MySpace Hoax. Scott Glover, LA Times, My Space Case Goes to Los Angeles Federal Jury raises the issue of whether this verdict will remain.
(esp) (w/ a hat tip to Gerri Moohr & Tiffany M. Joslyn, Research Counsel at NACDL’s White Collar Crime Project )
Addendum, Doug Berman, Sentencing Law & Policy, Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?