Friday, September 3, 2010

In the News & Around the Blogosphere

Dexter Filkins & Alissa J. Rubin, NYTimes, Graft-Fighting Prosecutor Fired in Afghanistan; Rahim Faiez & Deb Riechmann (AP), Afghan deputy attorney general forced to retire

Mike Scarcella, BLT Blog, DOJ Picks up Support in Prosecution of Former Congressman

Equilar, Executive Compensation Trends, 2010 Clawback POlicy Report can be obtained via here 

Jenna Greene, BLT Blog, Revolving Door at the SEC

DOJ Press Release, Former Executives Indicted in Conspiracy to Fix Fares on Flights Between the United States and the Republic of Korea


September 3, 2010 in News | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 31, 2010

Roger's Reputational Dilemma

As expected, Roger Clemens pled not guilty on Monday to charges of perjury, false statements, and obstruction of Congress. He is represented by two of the ablest white collar criminal defense attorneys in the country—Rusty Hardin of Houston and San Diego’s Mike Attanasio. I know these men and their work. They are stellar lawyers.

The government asked Judge Reggie Walton to make Clemens surrender his passport in order to reduce the risk of flight. Honest. They really did. Give me a break. Walton didn’t buy it.

It is generally assumed that Clemens could have taken five before Congress and was therefore foolish to testify and subject himself to possible perjury charges. I’m not completely convinced of this, since the activity Congress was investigating at the time appears to have been beyond the statute of limitations. How can you incriminate yourself by truthfully admitting to something that you can no longer be prosecuted for?

At any rate, Clemens appeared without a subpoena, so there was no question of him not testifying. His attorneys will be able to argue to the jury that he had everything to lose and nothing to gain by appearing and testifying. Ergo, he must have been telling the truth. This can be a powerful argument in skilled hands, particularly in front of a DC jury, but it is better not to be forced to make it at all-better not to be indicted in the first place.

Roger's dilemma is the dilemma of the client with exposure, even limited exposure, who cannot or will not do the prudent thing and shut the hell up. It is best not to testify under oath, or even talk to the government, if you face potential criminal prosecution. Just ask Martha Stewart. But some high profile clients cannot take the perceived damage to their reputations involved in invoking the privilege. Clemens had the example of Mark McGwire in front of him. McGwire’s reputation was permanently and severely damaged by his refusal, on Fifth Amendment grounds, to answer a Congressional panel’s questions. 

I know, I know; the privilege protects the innocent as well as the guilty. But nobody believes that in television land. Had Clemens publicly invoked the privilege, he would have been scarred for life. And he is not some dime-a-dozen, $40 million bonus CEO. He is one of the immortals.

The reputational dilemma is not confined to high-profile clients or the decision to invoke the Fifth Amendment. As a prosecutor, I saw defendants refuse to take plea offers, including misdemeanors with no jail time, because they could not admit wrongdoing to a spouse or child. It is a reminder that the strategy and tactics of criminal defense work are not always confined to logical analysis. The human, emotional element is ever present.


August 31, 2010 in Celebrities, Congress, Current Affairs, Defense Counsel, Martha Stewart, News, Perjury, Privileges, Prosecutions, Prosecutors, Sports, Statutes | Permalink | Comments (6) | TrackBack (0)

Monday, August 30, 2010

Upcoming Conferences

ABA, The Fourth Annual National Institute on Criminal Enforcement of Intellectual Property Rights, Nov. 5, 2010, San Francisco here

ABA, The Fifth Annual National Institute on Securities Fraud, October 7-8, New Orleans here 

Strafford Webinars & Teleconferences - Foreign Corrupt Practices Act in Sub-Saharan Africa -Compliance Strategies Given the Region's Unique Cultural and Governmental Intricacies - Oct. 7, here

ABA, The Supreme Court’s Ruling on Honest Services Fraud:Where Do We Go From Here? - Sept. 14, here

ABA 2010 Fall Conference, Third Annual Sentencing and Reentry Institute and Criminal Justice Legal Educators Colloquim, Nov. 5, Washington, D.C. here 

Town Hall Meeting on The State of White Collar Crime (Ticketed Event): Thursday, Nov. 4 - 4:00 -5:30 p.m. Town Hall Meeting on The State Of White Collar Crime The ABA Criminal Justice Section White Collar Crime Committee invites you to join us for a discussion of critical White Collar Crime practice issues. The Town Hall Meeting will place a heavy emphasis on audience participation. This is your chance to be heard and to ask questions of White Collar Crime experts on these and other timely topics. Will honest services, public corruption, Brady compliance still be hot in November? Join us and find out. Knowledgeable practitioners from the government and the defense bar will be part of a panel of experts to provide issue background as the conversation unfolds. 5:30 – 7:00 p.m. Reception (Catered by Washington, DC Chef Art Smith)  here

NACDL, Ignorance Is Bliss, But Is It Also a Crime? Opening Your Eyes to the Willful Blindness Doctrine, Sept. 16, 2010 5-7:30 p.m. Washington DC here


August 30, 2010 in Conferences, News | Permalink | Comments (0) | TrackBack (0)

Sunday, August 29, 2010

11th Circuit Reverses on Failure to Give Good Faith Reliance Instruction

The Eleventh Circuit Court of Appeals reversed several convictions in the case of United States v. Kottwitz for failure to give a "requested special instruction to the jury on their good faith reliance on their accountant's advice."

The court stated: "A trial court is not free to determine the existence of the defendant’s theory of defense as a matter of law; it is established by the defendant’s presentation of an evidentiary and legal foundation and, once established, the defendant is entitled to jury instructions on that defense theory." (citations omitted) 

The court also stated: "The defendant bears an "extremely low" threshold to justify the good faith reliance instruction and does not need to prove good faith."

 Finally the court said: "The instruction is appropriate even where the evidence might lead the jury to conclusions that would not benefit the defendant because refusing the charge withdraws the point from the jury’s consideration and a jury should be given the opportunity to resolve all questions of fact."

See also Carl Lietz & Paul Kish, Federal Criminal Lawyer Blog, Kottwitz: Eleventh Circuit Holds Trial Court Should Have Given Good Faith Defense Jury Instruction


August 29, 2010 in Judicial Opinions, Tax | Permalink | Comments (2) | TrackBack (0)