Sunday, April 12, 2009
Ernest Scheyder, Houston Chronicle (AP), Dynegy CEO's 2008 compensation drops 40 percent
Neil A. Lewis, NYTimes, Dismissal for Stevens, but Question on ‘Innocent’
Fraud With Peril, Stephanie’s Fresh Perspective
Northwestern University Law - Judicial Symposium - Criminalization of Corporate Conduct - April 20 - here
Georgetown Law Corporate Criminal Law Conference - Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance- April 21 - here
ABA - Insider Trading, April 29, webcast here
ABA - Internal Corporate Investigations and IN-House Counsel, May 6-8 here
ABA - 19th Annual Institute on Health Care Fraud, May 13-15 here
18th Annual Federal Sentencing Guidelines Conference in Clearwater, Florida, May 21-22 - Download 290200_09_guidelines_book
Friday, April 10, 2009
A "not guilty" verdict was returned on a drug case in Miami, but what happened during the investigation and prosecution of this case has now resulted in an award of $601,795.88 under the Hyde Amendment. The Hyde Amendment allows for attorney fees when a "prevailing criminal defendant" can demonstrate "that the position the government took in prosecuting him was vexatious, frivolous, or in bad faith." (see Order, infra, citing U.S. v. Gilbert).
Hon. Alan S. Gold, in the Southern District of Florida, issued an Order awarding these attorney fees and enjoined the US Attorneys who practice in that court from "engaging in future witness tampering investigation of defense lawyers and team members in any ongoing prosecution before [this judge] without first bringing such matters to [the judge's] attention in an ex parte proceeding." The judge also issued a public reprimand against the US Attorneys office and specifically 2 AUSAs. And it does not end there, as the judge also makes it clear that a disciplinary body needs to review this matter. (Court's Order - Download 08-20112 (Shaygan) Prosecutorial Misconduct FINAL )
The judge presents a thoughtful Order that gives credit to the USA's office for taking "immediate efforts to investigate" this matter when it came to light. After all, the taping of defense counsel and a defense investigator, by government informants, does present serious concerns. The failure to disclose this material is more problematic. The judge tells of Brady, Giglio, and Jencks issues in this case.
Hon. Alan S. Gold could not have said it better when he stated,
"It is the responsibility of the United States Attorney and his senior staff to create a culture where 'win-at-any-cost' prosecution is not permitted, Indeed, such a culture must be mandated from the highest levels of the United States Department of Justice and the United States Attorney General. It is equally important that the courts of the United States must let it be known that, when substantial abuses occur, sanctions will be imposed to make the risk of non-compliance too costly."
DOJ, the enforcer against corporate misconduct and the one who requests the appointment of monitors in deferred prosecution agreements, may seem to be having its own issues. One has to give the department credit for recognizing their lack of compliance in the Stevens case and agreeing to dismiss it. Likewise one has to give the government credit in this recent Miami case, in that the DOJ stated that they "made serious mistakes in a collateral investigation that was an offshoot of this case and stands ready to pay the additional attorneys' fees and costs incurred by the defendant as a result." Clearly the new AG Holder is taking a strong position against prosecutorial misconduct and sending that clear message to those in his office, something that is wonderful to see happening. But if this were a corporation that had committed misconduct, would these acknowledgments and payment be sufficient? The deferred prosecution agreement would require monitoring, and there would be a need to assure that there was now compliance. Mind you, I am not suggesting that a monitor in another deferred prosecution agreement case, John Ashcroft, be appointed here. But the concern is that both of the cases mentioned here had attorneys who could present these claims. My concern rests with the many cases that might have similar claims of misconduct but no attorney to bring the issues to light.
John Pacenti, Daily Business Review, law.com, Feds Ordered to Pay More Than $600K in Legal Fees for Misconduct in Fla. Drug Case (more on this later today)
Carrie Johnson, Washington Post,Holder Begins Justice Revamp -Personnel Moves Opt for Experience Over Political Ties; Joe Palazzolo, BLT Blog, Holder Names New OPR Chief
DOJ Press Release, Three International Airline Companies Agree to Plead Guilty to Price Fixing on Air Cargo Shipments - Cargolux Airlines International S.A., Nippon Cargo Airlines Co. Ltd. and Asiana Airlines Inc. Agree to Pay a Total of $214 Million in Criminal Fines
Washington Post, Holder Defends DOJ Following Stevens Dismissal
Mike Scarcella, BLT Blog, After Case Tossed, Stevens' Bar Licenses Remain Clean
Ashby Jones, WSJ Blog, Nacchio, Reaching for Another Lifeline, Heads Back to the Tenth Circuit
Sunday, April 5, 2009
The government filed a motion to dismiss the case against Ted Stevens, former senator from Alaska.(see here and here). And I immediately congratulated our new Attorney General on being a true "minister of justice" in a matter that appeared to warrant correction. As noted by Solomon Wisenberg over at Letter of Apology here, there are many lessons to be learned by prosecutors - most of all regarding the 302s, statements produced by the FBI when they interview witnesses. Wisenberg notes that when exculpatory information is obtained from a witness, in whatever form, that information is required to be turned over to the defense.
But it looks like someone else also wants it - the judge. Judge Emmet G. Sullivan entered two orders today (Sunday) - both sua sponte. He asks the government to provide by April 6th at 10:00 a.m. "all material gathered post-trial and produced to the defendant." Additionally he also asks the government to produce some materials including "exculpatory evidence, witness interviews, 302s, and affidavits" regarding one witness interview.
A second Order of the court requires all "government agencies involved in the investigation and/or prosecution of Senator Stevens [to] immediately preserve any and all documents related to this matter, including but not limited to emails, notes, memorandua,"...etc.
Gosh, wouldn't this all be simpler if we just went to videotaping all interviews. In this technology age it sure would help to have everything on playback.
Friday, April 3, 2009
Brian Baxter, AMLaw Daily, DOJ Charges First UBS Client in Tax Case
Editorial, NYTimes, Mr. Holder and the Ted Stevens Case
James Rowley & Justin Blum, Bloomberg, Holder Pledges Caution in Prosecuting Public Corruption Cases
Larry Ribstein, Ideoblog, After Stevens, what about Skilling?
Thursday, April 2, 2009
Rod Blagojevich and 5 others were indicted in a 75 page document that included a myriad of different federal statutes, such a mail and wire fraud, false statements and RICO. The Indictment with its 19 counts (16 against Blagojevich) claim that he "allegedly used his office in numerous matters involving state appointments, business, legislation and pension fund investments to seek or obtain such financial benefits as money, campaign contributions, and employment for himself and others, in exchange for official actions, including trying to leverage his authority to appoint a United States Senator." One interesting aspect of the Indictment is how prosecutors framed the Enterprise for the RICO charge. They call it the "Blagojevich Enterprise." The enterprise is an association in fact comprised of "defendant Rod Blagojevich, the Office of the Governor of Illinois, and Friends of Blogojevich." Will Blagojevich have any friends left by the time this case progresses to trial, if in fact it does?
DOJ Press Release here.
The first sentence given to a former General Re executive was for two years (see here). The second individual, AIGs former VP of reinsurance, was given four years (see here). The third person was sentenced to one year and a day (see here). And now a fourth person may be added to the prison system, this time with a sentence of 18 months. Colleen McCarthy of Business Insurance Magazine provides a detailed accounting of the sentencing hearing of a former finance exec at General Re. (see here). Some comments:
- Considering that the judge had previously looked at a significant loss figure, the sentence could have been extreme. (see here) One also had to be concerned about the effect of recent happenings at AIG and the public reaction -- which fortunately did not, as it should not, have come into play here.
- The judge in each of these cases appears to be sentencing the individual and not limiting the decision to arithmetic - and this is important. What is particularly noteworthy here is that the court credited the fact that "Ms. Monrad was not motivated by personal gain."
- The government needs to stop arguing that a convicted defendant is refusing to take responsibility for his or her actions. If a person is appealing a case - claiming innocence, and arguing that the conviction should not stand - how can you ask that person to take responsibility? To accept the government's argument would be to place the individual in a "Catch-22" position of maintaining innocence but also saying they are sorry for committing the act. It would render moot innocence claims in appellate arguments. We have an appellate system for a reason, and it should be respected.
- Even though the defendant was fortunate that the sentence was lower than the guidelines, it is still a sentence to prison for someone who had no prior criminal record. This is yet another indication that the days of probation for those convicted of white collar crimes has passed.
- Every time someone is given a prison sentence it is important to recognize that the sentence not only affects them, but all the family and friends that will suffer the ramifications of that sentence.
Addendum - Jane Mills & David Voreacos,Gen Re's Monrad Gets 18 Months in AIG Investor Fraud
Pamela MacClean, NLJ, law.com, Oregon AG asks that state employee pension fund be named co-lead plaintiff in UBS securities fraud class action
Allan Lengel, Ticklethewire,com, Commentary: Justice Failed to Deliver Justice in the Sen. Stevens Trial
Wednesday, April 1, 2009
DOJ Press Release, Hitachi Executive Indicted for his Role in LCD Price-Fixing Conspiracy
Rachel Tobin Ramos, AJC, Former Home Depot manager gets 5 years for kickbacks
What would Conrad Black say to the Chicago Tribune story - Sun-Times files for bankruptcy
Pepper Hamilton Successfully Defends Attorney in Federal Criminal Case ("individual charged as a co-conspirator in a case involving the governor of Puerto Rico") (plea "to misdemeanor and sentenced" to $3,000 fine)
Alison Frankel, American Lawyer, law.com, Former Stanford Exec Facing Criminal Charges Sues Proskauer for Malpractice
Ashby Jones, WSJ, Defendants, With Assets Frozen, Find It Tough to Hire Attorneys
Law.com (AP), Stanford Denies Wrongdoing, Wants Money for Lawyer
Georgetown University Law Center and the American Criminal Law Review are hosting a Corporate Criminal Law Conference: Achieving the Right Balance: The Role of Corporate Criminal Law in Ensuring Corporate Compliance on Tuesday, April 21, 2009. The conference will focus on the current state of corporate criminal law. Participants will also analyze corporate compliance programs and how a "good" corporate compliance program should be considered by prosecutors.
Registration will begin at 8:30 a.m. The program will follow from 9:00 a.m. to 3:00 p.m. The event will be held at Georgetown University Law Center located at 600 New Jersey Avenue, NW, Washington, DC 20001.
Luncheon keynote speaker Larry D. Thompson Senior Vice President, Secretary and General Counsel PepsiCo, Inc.
Luncheon keynote speaker
Larry D. Thompson
Senior Vice President, Secretary and General Counsel
Other confirmed speakers include:
, Principal Associate Deputy Attorney General, U.S. Department of Justice
Robert B. Fiske Jr
Robert B. Fiske Jr
., Partner, Davis, Polk & Wardell
Michele A. Roberts
Michele A. Roberts
, Partner, Akin Gump, Strauss, Hauer & Feld
Professor Sara Sun Beale
Professor Sara Sun Beale
, Charles L.B. Lowndes Professor, Duke University School of Law
Professor Pamela H. Bucy
Professor Pamela H. Bucy
, Bainbridge Professor of Law, University of Alabama School
Professor Ellen S. Podgor
Professor Ellen S. Podgor
, Associate Dean for Faculty Development & Electronic Education, Professor of Law, Stetson University College of Law
For more information please contact Michelle Kepick by calling (202) 463-5819 or by emailing email@example.com or firstname.lastname@example.org.
Sponsored byIn cooperation with the National Association of Criminal Defense Lawyers
A letter from the Administrative Office of the U.S. Courts informs the courts, defenders, and probation officers that "defendants who have been convicted of possessing false, stolen, or unlawfully produced identification documents, in violation of 18 U.S.C.§ 1028 (a)(4) or (6), may have been incorrectly sentenced under that statute's felony provisions, instead of the misdemeanor penalty provisions."
See Letter here -Download DOJ_Errors_in_1028_Prosecutions_-_DIR9-010
AG Eric Holder sets the tone for this new DOJ (see here) in his DOJ Press Release which states, "After careful review, I have concluded that certain information should have been provided to the defense for use at trial. In light of this conclusion, and in consideration of the totality of the circumstances of this particular case, I have determined that it is in the interest of justice to dismiss the indictment and not proceed with a new trial."
This dismissal is monumental in terms of sending a message that this justice department will be very different. Many years ago a group of AG's signed an amicus brief in the case of Gideon v. Wainwright advocating for the defendant. They wanted a fair fight in court, and recognized the importance of the right to counsel to achieving justice.What happened today is on par with what happened back then. It is a recognition that prosecutors are not merely advocates, but rather "ministers of justice." Today an Attorney General took the side of justice.
What Others Are Saying:
Ashby Jones, Breaking News: Gov. to Drop All Charges Against Ted Stevens, WSJ Blog here
Doug Berman, Sentencing Law & Policy here
Neil A. Lewis, N.Y. Times,U.S. to Drop Case Against Ex-Senator From Alaska
Erika Bolstad & Richard Mauer, Anchorage Daily News, Attorney general drops Stevens prosecution
It is definitely a new DOJ, and congratulations go to them for acting as true "ministers of justice." In a rare move, the Acting Assistant AG filed a Motion of the United States to Set Aside the Verdict and Dismiss the Indictment With Prejudice. Information was not provided to the accused, and the government admits that this information would have allowed for a cross-examination and arguments to the jury. Brady violations occur, but it is rare that a prosecutor openly admits to such wrongdoing. More importantly, moving to set aside the verdict and dismiss the indictment with prejudice speaks to a prosecutor who acts appropriately when an injustice has occurred. It is clear that the new administration is aiming to be "ministers of justice." We are all fortunate.
Defendant Wesley Snipes made a Motion for Limited Travel for Work Obligations. He sought permission to travel outside the United States for work on two films (Gallowwalker and Game of Death). The government objected to this post trial bail "on the grounds that Defendant Snipes traveled to Dubair, United Arab Emirates, in late November 2008 without obtaining prior permission from the Court." The court acknowledged that Snipes had violated his conditions of release for several reasons including "failing to notify his Pretrial Services Officer when his trip to Bangkok was canceled." But as the court noted, "[w]hile it does appear that on two occasions Defendant Snipes exceeded his travel conditions as set forth in his terms and conditions of release and the Court's July 2, 2008 Order, it is also true as pointed out in Defendant Snipes' moving papers that he has never failed to appear at the many proceedings in this case where his presence was required." In the end, the court granted the motion but did place restrictions on Snipes.
Court's Order - Download 520_OrdGrantTrav 033109
Interesting article can be found on the Brookings Website (here), with testimony from Robert Litan who calls for Congress to consolidate all federal financial regulatory acitivities into two agencies. He states - "--Do we need a systemic risk regulator (SRR)? Yes."
Our world is more specialized, and meeting issues with consolidation and specialization is important.