August 14, 2010
New Books and Articles
Gary Collins & David Z. Seide, Warning the Witness: A Guide to Internal Investigations and the Attorney-Client Privilege, ABA here
Harvey Silverglate, Forbes, Trust Me: Justice Is My Last Name
August 13, 2010
New FCPA Article
The Department of Justice has long promised tangible benefits to companies that voluntarily disclose Foreign Corrupt Practices Act (FCPA) violations. Justice Department officials have promised that the enforcement of the FCPA is both fair and consistent. Despite these promises, critics question the benefits of voluntary disclosure based on the outcome of a few, isolated cases. In this thesis, forty FCPA cases from 2002 through 2009 are compiled, comparing the ratio between bribes and fines for companies that do and do not voluntarily disclose. The results side with the critics and reveal that there does not appear to be a benefit to voluntary disclosure. The data from these cases is then used to identify how the FCPA can be honed to encourage compliance and deter violations in a fairer and more efficient manner. Next, comparisons are made between the FCPA and other anti-corruption organizations and entities, with the intent of incorporating refinements to the voluntary disclosure enforcement process. These comparisons consider not only the legal framework for preventing bribery but also how those laws are enforced. Finally, recent FCPA developments are considered along with some suggested actions to bring more fairness and efficiency to voluntary disclosures under the FCPA.
See also FCPA Blog here.
August 12, 2010
In the News & Around the Blogosphere
CMIO News, WellCare in the red for Q2, pays off $334 million in fraud settlements (shows what an effect of a deferred prosecution agreement can be)
Michael Bronner, Global Post, Telling Swiss Secrets: A Banker's Betrayal
Jenna Greene, law.com, NLJ, General Electric Settles Iraq Bribery Case With SEC
Cara Ellison, The Enron Blog, Prosecutorial Abuse In The Nigerian Barge Case
Cassie Spodak, CNN, Art dealer sentenced to jail for $120 million fraud (hat tip to Doug Berman)
Jay Weaver, Miami Herald, Miami Accountant Gets 8 1/2 years in prison for 'Ponzi-like' Scheme
SEC Actions Blog, Merchant Bank Pleads Guilty to FCPA Charge
Buckleysandler Bolsters Nationally Recognized Criminal & Civil Enforcement Team -With Addition of Four White Collar Attorneys -James T. Parkinson, Joseph J. Reilly, Adam Miller and Lauren R. Randell - Bring Added Depth with their Combined Litigation, Investigations and Compliance Experience
August 11, 2010
Money Laundering Counts Reversed in Two Sixth Circuit Cases
Two former officers and directors of the National Century Financial Enterprises had been convicted on multiple counts. The Sixth Circuit reversed the money laundering counts.
In the first case, United States v. Ayers, the court examined a conviction of conspiracy to commit money laundering and held that based upon Cuellar v. United States, 128 S.Ct. 1994 (2008), the conviction could not be upheld. The court stated:
"The government is correct that the Receivables Purchase Reports involved concealment: They falsely represented that investors’ funds were being legitimately used, and thereby induced the Trustees to wire the funds to providers. But that explains only how, and not why, the money was moved. The proposition that Ayers authorized the advances for the purpose of submitting phony Reports is simply implausible on this record. The government proved only that the Reports facilitated the advances; it did not prove that the Reports, or concealment generally, were the transactions’ purpose."
In Faulkenberry v. United States, the court stated in part:
"All of this reasoning, in our view, applies to the meaning of "designed" as used in § 1956(a)(1)(B)(i). To prove a violation of that subsection, therefore, it is not enough for the government to prove merely that a transaction had a concealing effect. Nor is it enough that the transaction was structured to conceal the nature of illicit funds. Concealment—even deliberate concealment—as mere facilitation of some other purpose, is not enough to convict. . . What is required, rather, is that concealment be an animating purpose of the transaction." (citations omitted)
"Money in motion does not necessarily equal money laundering."
Ayers -Download Ayers Opinion
Faulkenberry -Download Faulkenberry 1
(esp)(w/ a hat tip to Regina Ashmon and Monica Smith)
August 9, 2010
James K. Robinson 1943-2010 - He Did It All
We mourn the passing of James K. Robinson, educator/dean, prosecutor, defense counsel, and a truly wonderful person. He served as assistant attorney general in the US Department of Justice heading up the criminal division, as dean of the Wayne State Law School, and most recently as "a partner in the Business Fraud and Complex Litigation Practice in Cadwalader's Litigation Department" (see here). He was actively engaged in law reform work and was a member of the American Board of Criminal Lawyers (ABCL). Henry "Hank" Asbill (JonesDay) said, "as a prosecutor, Jim embraced his duty fairly to seek justice; and as a defense attorney, he thrived on his responsibility to zealously defend his clients. He was a true gentleman who was loved by many and admired and respected by all." I could not agree more. He will be missed.
See also Bill Laitner, Detroit Free Press, James K. Robinson: WSU Law School's former dean
August 8, 2010
Wesley Snipes - Will He Get A New Trial?
Wesley Snipes remains free despite the Government's attempt to revoke his bail. Additionally, the court is allowing the defense the opportunity to file a motion for a new trial and has outlined the briefing schedule for the defense and government.
Court's Order -Download 533_OrdHoldingUnderAdvise 080510
(esp) (blogging from Los Angeles)
Conrad Black - Free and Writing
As previously discussed, Conrad Black was freed on bail (see here) following the Supreme Court's decision that vacated and remanded his case back to the Seventh Circuit in light of its holding that honest services applies only to schemes premised on bribery or kickbacks.
Now check out Conrad Black's piece in the National Post, telling his impressions of some aspects of our criminal justice system. (link on Doug Berman's Sentencing Blog here). One of the dangers for the government of incarcerating an intelligent writer is that they will offer us the transparency that we seldom get to see. Thank you Conrad Black.
(esp)(blogging from Los Angeles)
In the News & Around the Blogosphere
Mary Orndorff, Birmingham News, Alabama judicial campaigns law unenforced for 15 years (w/ a hat tip to Ted Gest)
Samuel Rubenfeld, WSJ, Court Tightens Money-Laundering Proof Requirements
Terrie Morgan-Besecker, Times Leader, Supreme Court Ruling Could Significantly Impact O'Toole Sentence
AP, MercuryNews.com, New US attorney confirmed for Northern Calif.
Martha Neil, ABA LawJrl Now, Ex-Kaye Scholer Partner Indicted in Bankruptcy Fraud Case
(esp)(blogging from San Francisco)