Thursday, July 29, 2010

Past & Upcoming Seminars & Webcasts

Judgment Day: The Supreme Court Rule on Honest Services Fraud: Understanding the Outcome and its Ramifications - Audio Recording can be found here

False Claims Act - Whistleblower Protection Blog states that on Friday, July 23, 2010, the National Whistleblower Center (NWC) hosted a seminar on the False Claims Act that included a special presentation on the Dodd-Frank Wall Street Reform and Consumer Protection Act that was recently signed into law. Stephen M. Kohn, Executive Director of the National Whistleblower Center, gave the presentation.  To obtain the materials from this conference, see here

Bruce Carton, Securities Docket, Beyond the FCPA: Anti-Corruption Enforcement Goes Global
Channel: Securities Litigation and Enforcement Channel - see here

ALIABA, Internal Investigations in the Real World: Attorney-Client Privilege, Work-Product Doctrine, and Beyond here 

ABA, Fifth Annual National Institute on Securities Fraud here

ABA, The Supreme Court’s Ruling on Honest Services Fraud:

Strafford Webinars, Foreign Corrupt Practices Act in the MIddle East here

Sept 30- Oct.1, 2010 -6th Annual Defending the White Collar Case Seminar - NACDL and the Louis Stein Center for Law & Ethics at Fordham University Law School

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July 29, 2010 in Conferences | Permalink | Comments (0) | TrackBack (0)

Easterbrook To AUSA: Don't Do That Again

Last week in United States v. McGee, Seventh Circuit Chief Judge Frank Easterbrook excoriated an unnamed federal prosecutor from the Eastern District of Wisconsin for presenting rank hearsay in the form of an agent's narrative summary. The defendant's extortion and bribery conviction was upheld under plain error analysis, but Easterbrook and the panel were clearly fed up with the AUSA's actions.

 

According to the opinion:

 

McGee’s principal argument is that the trial’s first day included a narration of his guilt based on hearsay—and that’s indeed what happened. An FBI agent told the jury that to obtain a warrant for a wiretap the prosecutor had to establish, to a judge’s satisfaction, that the telephone was being used to commit a crime. This recounted what a preliminary investigation had revealed and why the United States Attorney and high-ranking officials at the Department of Justice thought it enough to support audio interception of McGee’s phone calls. Then the agent explained that District Judge Adelman, who issued the warrant for the interception, agreed with this conclusion. The warrant, which recites some of this evidence (and the judge’s conclusion), was introduced into evidence. Before the trial was two hours old, the essence of the prosecutor’s case had been laid before the jury. And not a word of this evidence was from a witness with first-hand knowledge or subject to cross-examination. The process violated both the confrontation clause of the sixth amendment and the hearsay rule.

 

The Seventh Circuit prohibited such testimony four years ago and McGee's trial took place well after that ruling:

 

McGee’s trial occurred 22 months after our opinion in Cunningham. The prosecutor should have known that he was eliciting inadmissible testimony. The judge should have known it too, yet did nothing. And defense counsel likewise must have understood that the testimony was out of bounds—yet he did not object. It is unlikely that counsel was asleep; the hearsay rule is second nature to any trial lawyer. Perhaps he viewed the prosecutor’s misstep as a godsend.

 

Judge Easterbrook and his fellow panel members threatened disciplinary proceedings in the event of any repeat occurrences:

 

Although McGee is not entitled to a new trial, we are dismayed by the prosecutor’s conduct and disappointed by the district judge’s failure to intervene. The extensive hearsay did not slip in by accident, in the heat of the moment; the prosecutor must have carefully planned this line of testimony. The proper way to introduce jurors to forthcoming wiretap evidence ought to be featured in the United States Attorney’s Manual. The United States has not attempted to defend the propriety of the prosecutor’s tactics. Waiver and the plain-error doctrine may insulate judgments from reversal, but recurrence of an episode such as this may lead to the opening of a disciplinary proceeding for the lawyers involved.

 

In another portion of the opinion, the panel upheld and approved the trial court's use of mid-trial evidentiary summaries presented to the jurors by the prosecution and defense. Distinguishing the Second Circuit's rejection of such summaries in United States v. Yakobowicz, 427 F.3d 144 (2nd Cir. 2005), Judge Easterbrook noted that the summaries were: presented after a weekend break, one to each side, and non-argumentative in nature. Hat tip to Mark Stuaan for bringing this opinion to my attention.

 

(slw)

 

July 29, 2010 in Fraud, Judicial Opinions, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Monday, July 26, 2010

Mail Fraud Prosecutions Continue Despite Skilling Decision - Univision Services, Inc. to Pay One Million

Many believed that there would be difficulty in bringing mail fraud cases if the Supreme Court removed honest services from the statute.  The Supreme Court did not provide that relief by its decision in Skilling, but did limit honest services to bribery or kickbacks.  But what often goes unnoticed, is that most mail fraud cases are not prosecuted under section 1346, the honest services statute. Most involve a deprivation of money or property, and these cases continue to be allowed. 

An example is seen in today's plea with Univision Services Inc., a wholly-owned subsidiary of Univision Communications Inc. The company agree to plead guilty to one count of conspiracy to commit mail fraud and to pay a fine or $500,000 and also $500,000 in a settlement that comes from a parallel investigation by the FCC. Implementation of a compliance plan was also required. A DOJ Press Release states: 

"Univision Services admitted that executives, employees and agents of Univision Music Group conspired to commit and did commit mail fraud from approximately 2002 to September 2006. According to court documents, the mail fraud was related to a nationwide scheme in which Univision Music Group executives, employees and agents made illegal cash payments to radio station programmers and managers in exchange for increased radio broadcast time for Univision Music Group recordings. The cash payments were made without on-air acknowledgments or payment of broadcast fees to the radio stations, as required by law."

(esp)

July 26, 2010 in Fraud, Prosecutions, Settlement | Permalink | Comments (3) | TrackBack (0)

In the News & Around the Blogosphere

Andrew M. Harris, Bloomberg, Blagojevich Tried to `Shake Down' Obama, Jury in Corruption Trial Is Told

Brian T. Murray, Star-Ledger, Judge considers bail request for ex-Jersey City deputy mayor during corruption appeal

Michael Pollick, HeraldTribune, Diamond found guilty in Ponzi scheme 

AP, San Francisco Examiner, Ex-Qwest CEO Seeks to MOve SEC Trial Out of Denver

Howard Mintz, Oakland Tribune, San Jose defense attorney convicted on five money-laundering counts (hat tip to Ivan Dominguez)

James Gordon Meek, Daily Caller, NYDaily News, Rep. Charles Rangel Needs to Keep Running for Office to Pay Off Mounting Legal Debt

Michael Wolff, Vanity Fair, Conrad Black is My Hero 

Debra Cassens Weiss, ABA Jrl,   SEC Paid an Ex-Wife $1M for Information in Pequot Case

NPR, Madoff Investors Who Gained May Face Lawsuits (hat tip to Ivan Dominguez)

Margie Manning, Tampa Bay Business Jrl., State Goes After More Money From Wellcare Health Plans

(esp)

July 26, 2010 in News | Permalink | Comments (0) | TrackBack (0)