White Collar Crime Prof Blog: April 4, 2010

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April 10, 2010

New Sentencing Resource for Federal Public and Community Defenders

Jennifer Niles Coffin and other members of the Sentencing Resource Counsel's Office have a wonderful new resource, and I vote it - very impressive - to assist with sentencing research. Here is how it was described to me:

"a website devoted to making available a large number of documents and materials from the Commission's public record that are not currently available on the Commission's website (and are otherwise difficult to obtain). These include nearly all public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports (including the mythical 1990 Firearms Working Group Report). The documents themselves are posted just as they appear in the records of the Sentencing Commission, and each document is fully searchable (although the site itself is not). The website address is www.src-project.org.

You can use these documents to figure out whether the provision was developed by the Commission in its characteristic institutional role, as the Sentencing Reform Act envisioned and as the Supreme Court has now re-emphasized. What comments did the Commission receive from stakeholders when it was contemplating the guideline or a subsequent change? What was said at the hearings? What did that staff report say? Because much of the administrative record is not available on the Commission's website (especially for the earlier amendment cycles), the answers to these questions have often remained mysteries.

You should think of this website as a library or repository for primary documents. The documents are arranged by category (public comment, transcripts, testimony, reports), so the website will be most useful when you have already targeted an amendment for an inquiry into its "legislative history" and you know the amendment cycle[s] in which the issue was under consideration. This information can be obtained by looking at the Historical Note in the Manual at the end of the guideline or policy statement at issue, then at the "Reason for Amendment" in Appendix C.

In addition, the Commission publishes every proposed and final action in the Federal Register. To find the administrative record of proposed amendments that were not adopted, or to find out whether the language of a proposed amendment evolved after the public comment period, search the Federal Register database on Westlaw or LEXIS for any notice of proposed amendments to the guideline or policy statement at issue. Then go to www.src-project.org (and the Commission's website, as appropriate) to examine the relevant materials."

(esp) (hat tip Todd Bussert)

April 10, 2010 in Government Reports, Sentencing | Permalink | Comments (0) | TrackBack

Another Ponzi Scheme Sentence - 50 Years for Petters

Charles Ponzi, for the scheme named after him, received a sentence of five years. Ponzi's sentence was given after he pleaded guilty in 1920 to one count of mail fraud. More recently Bernie Madoff received a 150- year sentence after a plea for activities related to a Ponzi scheme. Another recent Ponzi scheme netted the defendant a 100-year sentence (see here). This past week there is another sentence to add to the list of long sentences for Ponzi schemes. Tom Petters received a sentence of 50 years. See Annalyn Censky, CCN, Tom Petters gets 50 years for Ponzi scheme;David Phelps & Dan Browning, StarTribune,com, Tom Petters is sentenced to 50 years in prison

(esp)

April 10, 2010 in Fraud, Sentencing | Permalink | Comments (0) | TrackBack

April 9, 2010

Third Circuit Says No to DOJ Stretching & "Musical Chairs"

In the Third Circuit Court of Appeals decision, U.S. v. Schiff, the court stated:

"Frederick Schiff and Richard Lane were high-ranking corporate executives at the pharmaceutical giant Bristol-Myers Squibb ("Bristol"). They were criminally indicted for allegedly orchestrating a massive securities fraud scheme related to Bristol’s wholesale pharmaceutical distribution channels in the early 2000s, in violation of, inter alia, 15 U.S.C. § 78j(b) and Securities and Exchange Commission ("SEC") Rule 10b-5. The Government filed this interlocutory appeal in response to the District Court’s March 19, 2008 opinion that addressed several contested theories of liability as well as expert witness issues under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).1 On appeal are two issues: (1) whether the DistrictCourt properly dismissed the Government’s theories of omission liability under Rule 10b-5 that attempted to hold Schiff accountable for omissions in quarterly SEC 10-Q filings based on his and Lane’s alleged misstatements in Bristol’s quarterly conference calls; and (2) whether the District Court abused its discretion in excluding the Government’s expert, following a Daubert hearing, who would have testified to Bristol’s stock price drop as evidence of Rule 10b-5’s materiality element. Because we agree that the Government’s omission liability theories are not viable, we affirm the District Court’s dismissal of these theories. As to the expert testimony, we conclude that the District Court’s ruling excluding the Government’s materiality expert was not an abuse of discretion." (footnote omitted)

A telling line from the decision -

"Throughout the pretrial proceedings, and even in this appeal, the Government has engaged in a game of musical chairs with their pursuit of changing legal theories under Rule 10b-5."

See also Jonathan Stempel, Reuters, Bristol-Myers ex-CFO wins ruling in criminal case

(esp)

April 9, 2010 in Judicial Opinions, Securities | Permalink | Comments (0) | TrackBack