Saturday, May 29, 2010

In the News & Around the Blogosphere

Stuart Pfeifer, LATimes, Prosecutors halt case against Broadcom co-founders

Nathaniel Popper, LATimes,Wesley Snipes may be helped by former financial advisor's arrest

Stuart Green, Opinion, Christian Science Monitor, Sestak, Clinton, and Obama: Was it a bribe?

(esp)

May 29, 2010 in News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 27, 2010

Conspiracy is Not Limitless

Many prosecutors think of conspiracy as limitless, since after all Judge Learned Hand referred to conspiracy as "that darling of the modern prosecutor's nursery." (Harrison v. U.S.).  But it isn't and prosecutors in South Carolina found that out today when a court granted a defendant's Rule 29 Motion. The case has a long and tortured history that started in 2005 with indictments of officers and employees of Medical Manager Corporation.  The original indictment charged several folks, but after four years (yes, four years), the government dismissed several of the defendants prior to the start of trial.  Two individuals went to trial and the court has now dismissed the case against them.  Chief United States District Judge David C. Norton states:

"It is not this court's responsibility to salvage the government's prosecution. The government chose to indict, it chose to prosecute, it chose what evidence to present, and, even after specific inquiry by the court, it chose not to use expert analysis to prove any of the allegations with regard to the effect of the fraud, if any. The government made its bed and now it must lie in it."

In dismissing the case, the court further states:

"...in a case like this,to countenance the government's position that there was an express, original agreement to conceal, and/or that the conspiracy was ongoing because of conspiratorial objectives to conceal the conspiracy and to obtain personal enrichment, would eviscerate the boundaries of conspiracy law. This court simply cannot hold that Supreme Court case law, the statute of limitations, and general notions of fairness in our criminal justice system no longer have any meaning."

Attorneys handling this case were Joshua Dixon (Parker,Poe, Adams & Berstein LLP), John Lauro (Lauro Law Firm), Andrea St. Amand (Nelson, Mullins, Riley & Scarborough), Gary Trombley, Ronald Hanes, Matt Luka (Trombley & Hanes)

Order - Download Dismissal

(esp)

May 27, 2010 in Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Holder Memo - "Individualized Assessment"

AG Eric Holder issued a Memorandum on Department Policy on Charging and Sentencing that is different from former AG Ashcroft's Memo of 2003. It's a 2 1/2 page Memo with the term "individualized assessment" used four times, and "individualized justice" used one time.  These terms tell the story of the Memo that moves policy from strict uniformity to understanding that not all people and cases are alike.  He says it best when he states that "equal justice depends on individualized justice, and smart law enforcement demands it."  The Memo repeals two prior memos of Deputy Attorney General Comey, and the charging and sentencing memo of 2003 issued by Attorney General John Ashcroft.

Although the Memo aims for similar treatment for those who commit similar crimes and have the same culpability, it recognizes individuality and unique circumstances.  It is wonderful to see included in this Memo an Attorney General's statement that "[p]rosecutors must always be mindful of our duty to ensure that these decisions are made without unwarranted consideration of such factors as race, gender, ethnicity, or sexual orientation."   It is also wonderful to see that new AUSAs can't just charge individuals haphazardly as "[a]ll charging decisions must be reviewed by a supervisory attorney."

One of the most commendable aspects of this Memo is the AG's statement that "[c]harges should not be filed simply to exert leverage to induce a plea..."

The new Department of Justice is definitely moving to restore respect and professionalism to this important office.

Memo - Download HolderMemo

See also Ryan J. Reilly, Main Justice, Holder Issues New Charging, Sentencing Guidelines

(esp)

May 27, 2010 in Prosecutions, Prosecutors, Sentencing | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 26, 2010

When the Law Is the Perp

Guest Blogger - Op Ed

By Cynthia Hujar Orr, President, National Association of Criminal Defense Lawyers (NACDL)

With more than 20 years as an American criminal defense lawyer, I have witnessed the drafting and enforcement of innumerable federal criminal laws and regulations that patently fail to meet the basic requirements of fairness and justice. More and more, ordinary, hard-working people are being prosecuted for doing seemingly lawful, everyday things that run afoul of federal authorities or the tax collector. And then their nightmare begins.

Recently, I represented a physician who with other physicians and a medical supply company were involved in what can only be described as a profound personal and professional nightmare for them. Federal prosecutors decided to publicly investigate the clients for making treatment referrals that were not covered by Medicare or Medicaid. The patients in question, a number of whom were injured on the job and on worker’s compensation, came to the clients seeking to be made well again. When the clients made referrals for special treatment for patients with private insurance, sometimes the claims would be covered and honored by the insurance carrier, and sometimes they would not. It would depend on the carrier and the individual’s circumstances. To be sure, the treatment in question in this case has been covered by multiple insurance carriers whose names we all recognize.

Well, buried deep in the criminal code and the accompanying regulations, there are criminal penalties for making certain types of medical referrals when the patient’s medical care is covered by, in this case, (federally funded) Texas Medicaid or Medicare. In fact, a referral for more than $100 of the particular treatment in this case for a Medicaid/Medicare-covered patient can result in many years in prison – if dishonesty is involved. But today, the federal prosecution bar is set much lower than the bar for ordinary crimes such as theft.  Even a mere paperwork mix-up can result in a major criminal investigation where federal regulations are concerned.

After three years of search warrants, subpoenas, interrogations, public embarrassment and scrutiny in the media, threats to their professional licenses, and significant legal and other expenses, it was determined that, as the clients knew all along, they had done nothing wrong. No indictments were issued. Their lives, the lives of their patients, and necessarily the lives and practices of other physicians and professionals seeking nothing more than to do right by their patients and clients, will never be the same. They must now live with the knowledge of what we as criminal defense attorneys have been watching unfold for decades – we are all potential victims of poorly drafted laws that can be improperly and selectively applied by prosecutors. The irony has not been lost on me.  These doctor-clients were prosecuted not because they harmed anyone, but because they tried to help people.

To be sure, health care fraud is a pretty big business in America, with significant costs to all of us. But when the laws passed to deter and punish those who are actually committing those crimes are so poorly crafted that they lead to honorable, decent, everyday people becoming ensnared in our criminal justice system, there is no better evidence that we have a serious problem that must be addressed at the highest levels.  We have reached a point where the federal criminal code rivals or exceeds the federal tax code in volume and complexity.

For nearly two years, the National Association of Criminal Defense Lawyers and the Heritage Foundation have studied this problem, and its causes, in great depth. Noting that the federal criminal code alone now has an estimated 4,450 federal crimes, with an estimated tens of thousands more criminal provisions buried in the federal regulatory code, our organizations set out to see how defective laws, specifically those lacking adequate intent requirements, actually get enacted. The conclusions of this study, and the common sense recommendations to stop and reverse this trend and return the federal criminal law to its rightful role in our free nation, are set forth in a recently released report, "Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law."

As a practicing member of the criminal defense bar, I know that a lawyer’s job is to protect everyone’s rights, not just those of the criminally accused. Congress makes that job harder when it fails to recognize that a criminal law that no one understands – particularly one that can be violated accidentally, with no intent to hurt anyone – disserves society. Congress is eroding a core element of the criminal law – the intent to do harm or unjustly enrich one’s self. I hope members of Congress and their staff will consider that, and our report, the next time someone says, “There oughta be a law.”

(cho)

May 26, 2010 in Defense Counsel, Prosecutions, Scholarship, Think Tank Reports | Permalink | Comments (1) | TrackBack (0)

Friday, May 21, 2010

The White Collar Associate

The Ohio State Journal of Criminal Law is hosting an amici blog of views from the field.  Online is a piece by Jocelyn Kelly (Jones Day, Cleveland) that is titled, "Advocacy Before the Courtroom: The Life of an Associate in a White Collar Criminal Defense Practice."

(esp)

May 21, 2010 in Defense Counsel, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, May 20, 2010

In the News & Around the Blogosphere

Brenda Sapino Jeffreys, Texas Lawyer, law.com, Judge Shoots Down Allen Stanford's Third Request for Pretrial Release

Sheri Qualters, NLJ, law.com, Former Mass. Assistant AG Charged Over Solicitation of Investors for Ponzi Scheme

AP, Washington Post, Ex-NJ lawmaker is convicted in corruption probe

Terrie Morgan-Besecker, Timesleader.com, Powell tapes offer dilemma -Judge could toss out secret recordings

Stephanie Reitz, Newsday (AP), Hartford mayor's corruption trial gets under way

Eliot Kleinberg & Michael Lafordia, Palm Beach Post, 16 plead guilty to charges in Florida prison guard corruption probe

Geraldine Szott Moohr, Houston Chronicle, Why the Skilling case affects us all

DOJ Press Release, South Florida Resident Pleads Guilty in Connection with Business Opportunity Fraud Venture

DOJ Press Release, Former Employee of Financial Services Company Pleads Guilty for Role in Bid-rigging and Fraud Conspiracies Involving Proceeds of Municipal Bonds

DOJ Press Release, Two Chinese Nationals Convicted of Illegally Exporting Electronics Components Used in Military Radar & Electronic Warfare

DOJ Press Release, Sixth Individual Pleads Guilty for Role in $14.5 Million Medicare Home Health Care Fraud Scheme

DOJ Press Release, Minnesota Man Sentenced to 117 Months in Prison for Running Ponzi Scheme

David Glen, Chronicle of Higher Education, Former U. of Louisville Dean Is Sentenced to More Than 5 Years

Jeff Jeffrey, BLT Blog, Patton Boggs Lands DOJ Official for White-Collar Practice

Mark P. Rankin Joins Tampa Office of Shutts & Bowen LLP

Christopher Keating, Courant.com, Republican Ross Garber Is Running For Attorney General; Exit By Susan Bysiewicz, His Sister-in-Law, Opens Door (hat tip Ivan Dominguez)

Brenda Sapino Jeffreys, Texas Lawyer, law.com, Defense Lawyer for Allen Stanford Seeks to Withdraw

Julie Kay, Daily Business Review, law.com, Former Rothstein Chief Operating Officer Gets Plea Deal 

Mark Fass, NYLJ, law.com, 2 Attorneys Charged in $3 Million Real Estate Fraud

Stephen Bernard, AP, law.com, N.Y. AG Said to Be Investigating 8 Banks Over Securities

Lindsey Williams, Whistleblowers Protection Blog, Swiss Banker Turned Whistleblower Ended Up With a Prison Sentence

(esp)

May 20, 2010 in News | Permalink | Comments (0) | TrackBack (0)

19th National Federal Sentencing Guidelines Conference - Opening Day

The opening panel of this conference was United States Sentencing Guidelines Developments and a View from the District Court Bench. Moderating this panel was Professor Frank Bowman. Judges Frederic Block (ED NY), Steven Merryday (MD Fl) and Robert Pratt (SD Iowa) offered their perspectives. Judge Pratt had some important advice for defense counsel - sentencing is fact intense and you need to bring out the facts. You need to make a record.  My favorite line was when he said that there are a "number of opportunities to make the law more human."

The panel - Sentencing Issues in Securities Cases - had Henry "Hank" Asbill as the moderator. It's all about "loss" is the way it started. Listening to the speakers ( Mark Harris - Proskauser Rose, LLP; Michael Horowitz, Calwalder, Wickersam & Taft; Peter Spivack - Hogan & Hartson) it is clear that an expert is needed to assist in measuring loss. But as noted by one of the speakers, "[i]f you go down the expert road these are very complicated issues." Hank Asbill asked "[w]ere the guidelines based upon assumptions in the market?"

(esp)

May 20, 2010 in Conferences, Securities, Sentencing | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 11, 2010

In the News & Around the Blogosphere

Saturday, May 8, 2010

In the News & Around the Blogosphere

Celeste Katz, NYDaily News, State Dems, GOP Go At It Over Bruno Sentencing

David Ovalle, Miami Herald,Prosecutors overrule Miami Police on anti-corruption arrests

Mike Scarcella, BLT Blog, DOJ, Defense Lawyers Spar Over Pace of FCPA Prosecution

Shannon P. Duffy, law.com, Pa. Lawyer Gets 6 1/2 Years for Fraud

Michael Alison Chandler, Washington Post, Former T.J. High official pleads guilty to embezzlement (hat tip Ivan Dominguez)

Providence Headlines Examiner, FBI arrests North Providence town council members in public corruption case

Joe Palazzolo, Main Justice,For DOJ, A Three-Case Term

DOJ Press Release, Brooklyn Physical Therapy Clinic Executive and Three Employees Charged in Health Care Fraud Scheme

DOJ Press Release, Baltimore Attorney Sentenced to One Year in Jail for Bid Rigging at Maryland Tax Lien Auctions - Sentenced to Pay $800,000 Criminal Fine

DOJ Press Release,Miami Clinic Consultant Convicted in $5.8 Million Fraudulent HIV Infusion Scheme

NJ.com (AP),Former Jersey City Councilman Philip Kenny gets one year for corruption

Nicholas Confessore, NYTimes, State Bill to Take on Public Corruption

David Ingram, BLT Blog, Senators Ask, Should Financial Fraud Mean More Prison Time?

Mike McKee, The Recorder, law.com, Calif. Justices Weigh Controversial Price-Fixing Defense

Amir Efrati, WSJ, New Factors to Help Judges Determine Leniency

 
(esp) (Blogging from Los Angeles)

May 8, 2010 in News | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 5, 2010

United Kingdom’s Bribery Act 2010

Guest Bloggers - Catherine L. Razzano, Margaret Ryznar (Cadwalader, Wickersham & Taft LLP)

Following extensive efforts to reform its approach to bribery, the United Kingdom last month enacted new bribery legislation—the Bribery Act 2010.

The Bribery Act replaces the common law offenses with two general bribery offenses, a specific offense for the bribery of foreign government officials, and a specific offense of corporate negligence. The critical components of these offenses include: (1) commercial bribery of private business officials; (2) bribery applicable to both individuals and corporations, both of whom are directly liable for the actions of their agents; (3) liability for corporations and partnerships for the "failure to prevent bribery;" and (4) extra-territorial jurisdiction to prosecute bribery committed abroad by persons ordinarily resident in the United Kingdom, as well as U.K. nationals and U.K. corporations. Two other important features include (i) replacing the existing requirement for the Attorney General’s consent to prosecute bribery with the consent of the Director of the relevant prosecuting authority; and (ii) instituting a maximum penalty of 10 years imprisonment for all new offenses and unlimited fines for violations of the corporate offense for failing to prevent bribery.

The Act makes it an offense for a person (or an agent of that person) to offer, promise or give "a financial or other advantage" to another person with the intention of inducing that person to perform "improperly" a function or activity. Similar to the U.S. Foreign Corrupt Practices Act, "financial or other advantage" is left to be determined "as a matter of common sense by the tribunal of fact" and is not clearly defined. The "function or activity" is defined broadly by the proposed legislation in that it applies equally to public and private sector business and includes all activities performed either in the course of employment or on behalf of an individual. However, not every improper performance of a function or activity will violate the general bribery offense. Rather, section 3(3) of the Act clearly states the function or activity be performed in good faith, which is akin to the U.S. notion of acting in good faith, except that a reasonable person test will be applied in determining whether the performance was improper. The recipient of a bribe will also be guilty of an offense if that person requests, agrees to receive or accepts an "advantage" in the aforementioned circumstances.

Meanwhile, the separate offense of bribery of a foreign public official (including, among others, agents of the foreign public official and individuals working for international organizations) closely tracks the elements of the bribery offense contained in recommendations of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. As defined in the Act, the bribe payer must intend to influence the recipient of the bribe in order to obtain or retain business or an advantage in conducting such business. Interestingly, liability is not determined by whether or not the action sought from the foreign public official is improper but whether the advantage is permissible under the law applicable to the foreign public official (and not merely customary or widely accepted practices).

Of all the changes to the current bribery legislation in the United Kingdom, the offense of failing to prevent bribery by companies is the most novel. Under this offense, a commercial organization or company commits a crime if (a) a person performing services on behalf of the company (including employee, agent, or employee or agent of a subsidiary) bribes another person with the intent to obtain or retain business, or an advantage in business, for the organization, and (b) the bribe is in connection with the company’s business. Individual prosecution for bribery is not necessary for this offense to apply to the company, provided that the agent or employee is or would be guilty of the offense of giving or offering a bribe.

The Act further provides that it is a defense if a company can demonstrate "adequate procedures designed to prevent [bribery]." As noted by the Ministry of Justice, the corporate offense is "not regulatory in nature and there will be no monitoring of compliance." The Ministry has also proclaimed that there is no "one size fits all approach" to compliance and that they do not intend "to prescribe the anti-bribery measures to be taken." Section 9 of the Act requires the Secretary of State to publish guidance about procedures that relevant commercial organizations can put in place to prevent persons from committing acts of bribery. That guidance, however, has yet to be published.

(clr & mr)

May 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 2, 2010

In the News & Around the Blogoshere

Timesleader.com, Local leaders urged to take firm pledge against ‘culture of corruption’ Commentary The Council of Presidents

Joshua Gallu, Bloomberg, Goldman Sachs Loses Room to Maneuver After Public Testimony; Marcy Gordon, AP, law.com, Justice Department Opens Criminal Probe of Goldman

Victor Godinez, Dallas Morning News,Summit in Dallas Targets Cybercrime

Scott Sayare, NYTimes, France: Ex-Minister Convicted

Donna Weaver, AtlantaCity.com, Corruption trial to start Monday for former Ocean County Assemblyman Daniel Van Pelt

Jeff Coen, Chicago Breaking News, Judge won't allow Blago defense to subpoena Obama

Nigel Duara, (AP) law.com, Feds Back Off From Life Sentence for Slaughterhouse Fraud Case

Julie Kay, Daily Business Review, law.com,Tearful Ex-General Counsel Details Huge Ponzi Discovery

DOJ Press Release, Tennessee Man Convicted of Illegally Accessing Sarah Palin’s E-mail Account and Obstruction of Justice

Andy Jones, BLT Blog, DOJ Racks Up Another $100 Million in Pharmaceutical Settlements; DOJ Press Release,Two Johnson & Johnson Subsidiaries to Pay Over $81 Million to Resolve Allegations of Off-Label Promotion of Topamax; DOJ Press Release,  Schwarz Pharma Pays $22 Million to Settle False Claims Allegations Concerning Reimbursement for Unapproved Drugs

Christopher M. Matthews, Main Justice, Russians Request Info on Daimler Bribes

DOJ Press Release, Miami Resident Pleads Guilty to Conspiracy to Defraud the Export-Import Bank

DOJ Press Release, Houston Medical Equipment Company Owner, Operator and Patient Recruiter Plead Guilty to Health Care Fraud Scheme and Illegal Health Care Kickbacks

(esp)

May 2, 2010 in News | Permalink | Comments (0) | TrackBack (0)