December 26, 2008
In the News & Around the Blogosphere
Glenn Reynolds, InstaPundit, as to a LATimes story on the fed probe of Governor Richardson - here
Daniel Wise, NYLaw Jrl - law.com, Top Counts Dropped Against Former Executive in Medicaid Fraud Case (w/ a hat tip to Bill Olis)
Eric Lightblau, NYTimes, Federal Cases of Stock Fraud Drop Sharply
Karen Hawkins, TBO.com (AP), Gov's Lawyer asks panel to subpoena Obama staff
Ken Belson & Eric Lichtblau over at the NYTimes have an article, A Father, a Son, and a Short-Lived Presidential Pardon that tells of President Bush's rescinding a pardon when he learned that the father of the pardoned individual had donated money to Republicans. This blog discussed these pardons here. Several items of interest here:
- The president seems to believe that he has the power to rescind a pardon. The NYTimes article states that "the Justice Department said it believed that the original pardon announcement was not binding and could be revoked because Mr. Toussie had not received formal notification of the president’s action." How formal does the notification have to be? Isn't a DOJ Press Release sufficient? Yes - a DOJ Press release that explicitly begins - "WASHINGTON – On Dec. 23, 2008, President George W. Bush granted pardons to 19 individuals and commutation of sentence to one individual" and then includes:
• Issac Robert Toussie - Brooklyn, N.Y.
Offense: False statements to the U.S. Department of Housing and Urban Development, 18 U.S.C. § 1001; mail fraud, 18 U.S.C. § 1341.
Sentence: Sept. 22, 2003; Eastern District of New York; five months in prison, three years of supervised release conditioned on five months of home detention, $10,000 fine."
- If they hadn't asked about political contributions previously, and had no knowledge of the political contribution at the time of granting this one, then why rescind this pardon? Do you rescind something just because it looks bad?
- It sounds like the father made the contributions and not the son. Do you rescind a pardon because of acts of a parent? And should all people and their families who might be interested in obtaining a pardon need to beware of their contributions and not make any political contributions because it may result in a rescinded pardon if someone finds out about the contributions after the fact?
- If the pardons are going to the white house and not DOJ, then are pardons limited to those individuals who have access to the white house? What does this say about the process and individuals who can't hire a lawyer who can petition a pardon from the white house? One certainly can't count on a public defender for this. If the DOJ is not going to be used, then perhaps the President needs an internal pardon officer to review all the petitions.
- And should this case have been considered for a pardon? See Peter Wallsten, LATimes, Bush withdraws fast-track pardon It doesn't seem like the victims believe this merits a pardon. See Sumathi Reddy, Michael Amon, Patrick Whittle & James Bernstein, Newsday, Bush defends Suffolk real-estate swindler pardon
- And has President Bush just assured the confirmation of Eric Holder as AG - after all Holder did not have the opportunity to rescind the pardon given by the President - so can you really hold it against him? Or maybe people will start looking at the rest of Holder's record and see where he stands on items like the Holder Memo (see here).
Sometimes you make mistakes, and you have to live with them. But it is also important to learn from your mistakes. President Bush needs a better system for reviewing and granting pardons. But the pardons are an important part of the presidential powers and hopefully his mistake will not cause him to stop reviewing the many meritorious pardons that need consideration.
See also Dan Slater, WSJ Blog, Pardon Goes Awry, Thanks to White House Counsel’s Advice; Doug Berman's Sentencing Law & Policy here and here.
Statement by the Press Secretary, White House here
Instapundit (also citing the Pardon Power Blog) here
December 24, 2008
Wishing everyone a happy, healthy, and peaceful holiday.
December 23, 2008
The Holiday Pardons
President Bush issued some holiday pardons - 19 individuals were recipients, and one person had a sentence commutation. The list includes many older offenses, with a few being drug related crimes.
The ones that might be considered white collar ones included a 1985 mail fraud conviction, a 1993 aiding and abetting embezzlement of bank funds, a 1993 conspiracy to defraud the U.S., a 1962 forging the endorsement on a US Treasury check, a 1998 concealment of information affecting Social Security benefits, a 1971 embezzlement of mail matter, a 2003 false statements to the HUD and mail fraud, a 1949 conspiracy to export and exportation of a military aircraft to a foreign country in violation of the Neutrality Act of 1939, and a 1992 aiding and abetting violation of the Archaeological Resources Protection Act.
For the story behind one of the pardons, see Eric Lichtblau, Jailed for Aiding Israel, but Pardoned by Bush
Additional Addendum, Jordan Weissmann, BLT Blog, Pardon Memo Puzzles Legal Experts
In the News & Around the Blogosphere
David Ingram, BLT Blog, Prosecutor in Marc Rich Case Endorses Holder
Mike Scarcella, BLT Blog, Whistleblower Alleges Government Misconduct in Stevens Trial
More on Kuehne
As noted here, the judge in Ben Kuehne's case dismissed Count One of the Indictment against him. It's a simple question and an obvious ruling. The statute (18 USC § 1957) has an exemption as part of a definition clause that provides that the term monetary transaction "does not include any transaction necessary to preserve a person's right to representation as guaranteed by the sixth amendment to the Constitution." The government attempted to use the Caplin & Drysdale decision, a forfeiture case, to support their argument. But as noted by Judge Cooke, "[u]nlike § 1957, the civil forfeiture statute, 18 U.S.C. § 981, does not include an exemption for attorney's fees." The court made it clear that this ruling does "not find the statute exempts everyone who handles tainted funds, to and from defense counsel to provide legitimate criminal defense services."
The more important question is why did the government include this charge that clearly was not permitted under the express terms of the statute, and what does this say about the rest of their case. For background see here.
Fiat FCPA Deferred Prosecution Agreement
Noted here was the recent Fiat deferred prosecution agreement. The FCPA Blog has the agreement, as well as comments here. Yes, this is an end-of-the-year (or as some might say, a pre-new administration) agreement in the U.N. Oil for Food investigation. The DOJ Press Release states that "Fiat S.p.A (Fiat), an Italian corporation based in Turin, Italy, has agreed to a $ 7 million penalty for illegal kickbacks paid to officials of the former Iraqi government by three of its subsidiaries." There is also a $3.6 million in civil penalties and an additional amount in disgorgement of profits.
By having a deferred prosecution agreement, the government is able to keep check of any future violations of the company. If the company complies with the agreement than the government dismisses the information against the entities charged.
This all sounds good and clearly it is a win-win situation for all parties - the government, the companies, and the general public that wishes to know that kickbacks will not occur in the future.
But there are several aspects of the agreement that raise questions here:
- The deferred prosecution agreement is yet another instance of the company selling out individuals within the company. Now clearly if these individuals are going against company policy, and acting illegally - it is deserved. But having the larger entity being able to negotiate these agreements while individuals take the fall, raises issues as to whether power is being used against the less powerful.
- The agreement states that the department "in its sole discretion" gets to determine a breach. From a contract standpoint is it proper to have a breach of the contract determined solely by one of the parties to the contract? See Zierdt & Podgor, Corporate Deferred Prosecutions Through the Looking Glass of Contract Policing, 96 Kentucky L.J., available here.
- And again (see here) we are seeing a provision that only allows the company to issue a "press release if they first determine that the text of the release is acceptable to the Department."
December 22, 2008
In the News & Around the Blogosphere - Including Update on Ben Kuehne Case
David Markus, Southern District of Florida Blog, Judge Cooke grants Ben Kuehne's motion to dismiss Count 1; Dan Slater, WSJ Blog, Judge Dismisses Count I of Ben Kuehne’s Money Laundering Indictment
In the News and Around the Blogosphere
Matthew Goldstein, Business Week, Madoff Losses Will Change Hedge Funds
Jenn Abelson (w/ Beth Healy & Casey Ross), Boston Globe, Bernie Madoff's man to see -Debonair middleman Robert M. Jaffe finds himself in a most uncomfortable place
Patricia Hurtado, Bloomberg.com, FBI Agents Shifted From Terror Work to Madoff, Subprime Probes
Breaking News, Chicago Tribune, Ryan's wife sends plea to Bush
Siri Schubert & T. Christian Miller, NYTimes, At Siemens, Bribery Was Just a Line Item
Findlaw - Bail Conditions in Madoff Case - here (w/ a hat tip to Whitney Curtis)
DOJ Press Release, Alaska State Senator Pleads Guilty to Public Corruption Charges
December 21, 2008
In the News and Around the Blogosphere
The Abramoff aftermath never seems to end. In the latest happenings, one sees that David Safavian, former chief of staff at the General Services Administration, is convicted in a retrial. See Derek Kravitz, Washington Post, Ex-White House Official Convicted Again. He was initially convicted after a trial by jury and given a sentence of eighteen months. That conviction was overturned. The interesting question is whether the court will keep the sentence constant in a post Gall and Kimbrough world. For background on the case see:
- Abramoff - The Reward for Cooperation
- Commentary on Safavian Reversal
- Safavian Sentenced to 18 Months
- Safavian Guilty- What Does This Mean?
- In the Words of Abramoff
- Abramoff and Rove
- Former GSA Chief Indicted
- Ex-Official in Bush Administration Indicted