Friday, December 12, 2008
Some additional thoughts and references on the Blogojevich case -
- It seems clear that US Attorney Patrick Fitzgerald is now presenting the case to a grand jury. See Todd Lightly & Robert Becker, Chicago Tribune, Tribune Co. subpoenaed in Blagojevich probe (it seems a bit odd to hear the CEO of the Tribune Co. saying to the press that he will not be interviewed)
- Howard Kurtz,Washington Post, Media Notes, discusses a point mentioned here regarding the appropriateness of Patrick Fitzgerald characterizing the evidence to the press. Kurtz notes that US Attorney Patrick Fitzgerald may have gone "beyond describing the allegations contained in the criminal complaint" - Kurtz provides a statement from the Illinois Disciplinary Rule concerning such statements. But to add to what Mr. Kurtz has written, there is also the ABA Prosecution Function Standards that instructs prosecutors not to make extrajudicial statements that "the prosecutor knows or reasonably should know ... will have a substantial likelihood of prejudicing a criminal proceeding," and the ABA Standards for Criminal Justice, Fair Trial and Free Press that question whether a prosecutor should make a statement that speaks to an "opinion of the lawyer on the guilt of the defendant, the merits of the case or the merits of the evidence in the case." (8-1.1). And we haven't even mentioned the internal guidelines of the DOJ on this issue. (see John Steele, Legal Ethic Forum here)
- And then there is the most important question of whether the evidence is really there that provides evidence of any crimes. See Mike Robinson, Houston Chronicle (AP), Are Blagojevich tapes enough evidence to convict?
- Politicians face additional issues when under investigation or when charged with a crime. The parallel proceeding may be an impeachment process. See Ray Long, Chicago Tribune, Quinn: Impeach Rod, let me pick Obama replacement
- One thing is certain - this case will continue to be in the news over the next month.
(esp)(w/ a hat tip to Mark Johnson for the Howard Kurtz piece).
Pamela A. MacLean, NLJ, In upholding Impath exec's sentence, court bolsters discretion of trial judges (discussing the Second Circuit affirming the Adelson case) The decision - the court stated "[b]ut the record demonstrates that the District Court’s decision to impose a below Guidelines sentence was not a failure or refusal to recognize the Guidelines, but rather a carefully considered reliance on the Section 3553(a) factors." - for background see here and here).
Kayce T. Ataiyero, Chicago Tribune, 'The Sopranos,' and other shows Gov. Rod Blagojevich apparently learned nothing from
Karen Sloan, National L J., In Dreier fallout, some of firm's attorneys make a public disavowal ; Amanda Bronstad; Shockwaves from Dreier hit the west coast; William K. Rashbaum & Alison Leigh Cowan, NYTimes, Lawyer Is Accused in Massive Hedge Fund Fraud
Vesna Jaksic, National L J., Piece of Puerto Rico governor's criminal case — involving an attorney — moved to Philadelphia
(esp) (w/ a hat tip to John Wesley Hall)
Thursday, December 11, 2008
Fish & Richardson, PC has a client alert authored by Matthew L. Levine, William B. Mateja, and Franceska O. Schroder titled, "Justice Department Report Shows Enforcement of Export Controls," and has an opening statement - "The Justice Department announced last month that it had filed criminal charges against more than 145 defendants for its Fiscal Year 2008."
David Voreacos and Jane Mills (Bloomberg) have a must-read article in Monrad Regrets Not Testifying on GenRe Fraud as Prison Looms.
What struck me in this article was Monrad's claim of innocence and the consequences she faces as a result of asserting that claim. I was at a criminal discussion forum at Emory Law School yesterday and talked about my draft paper, White Collar Innocence: Irrelevant in the High Stakes Risk Game. Those facing white collar crime charges, who claim innocence, often are faced with the testimony from cooperating witnesses who will receive substantially reduced sentences in return for their testimony. The assertion of innocence can carry a "trial penalty" that can be enormous. But the more important question is whether our legal system should allow this to happen.
John Caniglia, FBI raids downtown Cleveland office in mortgage fraud probe
Chronicle of Higher Education, U. of Akron Trustee Is Indicted in Ethics Case
DOJ Press Release, Japanese Executive Pleads Guilty, Sentenced to Two Years in Jail for Participating in Conspiracies to Rig Bids and Bribe Foreign Officials to Purchase Marine Hose and Related Products
John Fritze, USA Today, North Dakota tops analysis of corruption
Alex Bunin, of the Federal Public Defender's Office in New York puts out a wonderful publication on federal convictions that are reversed. His latest update can be found at -
In the white collar area you'll find cases on mail fraud/ RICO/perjury/false statements, etc.
Tuesday, December 9, 2008
The arrest of Illinois Governor Blagojevich raises some interesting questions. Here are some very preliminary thoughts (for backgound see here):
- Clearly the selling of a Senate seat and the other remaining allegations in the Complaint are appalling and if the Governor is found to have done this, it is something that needs immediate correction. But it is also important to remember that this is not an Indictment coming from a grand jury and he has not been proved guilty after a trial by jury. Unlike some countries, we are not a country that convicts a person without first affording them a right to a trial by jury.
- One has to wonder whether Governor Blagojevich will be able to obtain a fair trial. Even if what the USAttorney heard on tapes was as outrageous as he claims, is it proper for a United States Attorney to make comments that characterize the alleged conduct? See Chicago Sun Times here; NYTimes here.
- Mail and wire fraud are statutes with enormous breadth. Using the "intangible right to honest services" under section 1346 extends it even further. After all, what isn't "honest services?" Now put it all together under a conspiracy statute (1349) and the question becomes - how far can prosecutorial power go? (e.g. - the hypo I use in this older article is whether a political falsehood is therefore a dishonest service - see here). One question the defense may raise is whether there was a violation of state law that can serve as the basis for the deprivation of an intangible right to honest services.
- There are no allegations of Hobbs Act violations in the complaint. Interestingly this approach would require a quid pro quo - an important requirement when political contributions are involved. Is the use of the mail/wire fraud statutes an attempt to find an open back-door? Is it being used as the "stopgap" (a term once used in the Maze case).
- Many of the people listed in the Complaint are named as "A", "B", etc. Are any of these unnamed individuals cooperating, and if not, will they soon be?
- The federal government has been obtaining information from wires on a state official as high as the governor. The press release states:
"On October 21, the Government obtained a court order authorizing the interception of conversations in both a personal office and a conference room used by Blagojevich at the offices of Friends of Blagojevich. The FBI began intercepting conversations in those rooms on the morning of October 22. A second court order was obtained last month allowing those interceptions to continue. On October 29, a court order was signed authorizing the interception of conversations on a hardline telephone used by Blagojevich at his home. That wiretap was extended for 30 days on November 26, according to the affidavit.
what does this say about the appropriate balance between the state and federal government?
- Most USA's resign when a new president comes into office. Unlike the civil service employees who work in the office, the US Attorney's serve as a presidential appointment. Will the new DOJ approve this case? Will Patrick Fitzgerald be there to prosecute this case?
- The Complaint alleges that the arrestees had "corruptly solicited and demanded the firing of Chicago Tribune editorial board members" - but some in the press seem to say the opposite (see here).
- Will all this "news" help the Chicago Tribune - Tribune Co. files for Chapter 11 bankruptcy protection. But can we count on them to report all the news (see Chicago Tribune Editor Kern's admission to withholding items here - an interesting issue in itself considering that this information does not appear to be related to national security).
- Would everyone be best here if an agreement is reached that takes this matter off the front page? In this regard perhaps the Governor of Illinois should call former Governor Spitzer for advice. (see here)
- And yes, if these allegations all turn out to be true - then maybe we need some basic ethics tests before a person can hold political office.
(esp)(blogging from Atlanta)
U.S. Attorney Patrick Fitzgerald, the same man who handled the case against Governor Ryan, has now had Governor Rod Blagojevich of Illinois arrested. Also arrested and released was his chief of staff John Harris (See Chicago Tribune here). A press release of the US Attorney's Office for the Northern District of Illinois states that:
"arrested today by FBI agents on federal corruption charges alleging that they and others are engaging in ongoing criminal activity: conspiring to obtain personal financial benefits for Blagojevich by leveraging his sole authority to appoint a United States Senator; threatening to withhold substantial state assistance to the Tribune Company in connection with the sale of Wrigley Field to induce the firing of Chicago Tribune editorial board members sharply critical of Blagojevich; and to obtain campaign contributions in exchange for official actions – both historically and now in a push before a new state ethics law takes effect January 1, 2009."
The Criminal Complaint alleges violations of the mail and wire fraud statute using the intangible right to honest services for allegations of conspiracy under section 1349. There is also a claim under section 666 of title 18 of the federal criminal code. Commentary to follow.
(esp)(blogging from Atlanta)
Monday, December 8, 2008
Martha Graybow, Reuters, September trial set for ex-Bear Stearns executives
Kevin McDermott, St Louis Dispatch, A reprieve for former Gov. George Ryan would join a long list of controversy
R. Jeffrey Smith, Washington Post, The Politics of the Federal Bench
Sunday, December 7, 2008
The American Bar Association - Criminal Justice Section and the Alabama State Bar Association - Ethics – Politics and Public Corruption - April 3, 2009 Ross Bridge Golf Resort and Spa, Birmingham, Alabama - here (corrected link has been inserted)
National Institute on White Collar Crime - March 4-6, 2009 -Westin St. Francis, San Francisco, CA -here
Washington Legal Foundation, FCPA Enforcement & Financial Crisis: How World-Wide Government Intervention Affects Foreign Corrupt Practices Compliance - December 10, 2008 - webcast