December 30, 2010
2010 White Collar Crime Awards
2010 White Collar Crime Awards
Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. I welcome comments from readers who would like to suggest additional categories or winners (or losers?).
With the appropriate fanfare, and without further ado,
The Collars for 2010:
The Collar for the Least Read Piece of Legislation By Congress - The Dodd-Frank Act.
The Collar for the Most Read Piece of Legislation By Corporate Counsel- The whistleblower provisions in the Dodd-Frank Act.
The Collar for Best Legislating from the Bench - The Supreme Court Justices who held in the Skilling decision that the honest services statute of mail fraud should be read to include bribery and kickbacks.
The Collar for the Best Rube Goldberg Maze - The Supreme Court Justices who failed in the Skilling decision to explain what will constitute bribery and kickbacks.
The Collar for Recognizing the Best Invention of the Year - To Justice Scalia for his concurring opinion in Skilling.
The Collar for the Gun Used Most Often in Corporate Hold-ups - The Foreign Corrupt Practices Act.
The Collar for Second Chances Sometimes Don't Make A Difference- To Greg Reyes who was convicted in a retrial.
The Collar for Wanna-Be An Economic Stimulus to the Legal Profession - To the defendant formerly known as Sir Allen Stanford.
The Collar for "You Want It When?" - To Lloyd's of London for successfully avoiding further payment of defense costs to the criminal defendants in U.S. v. Stanford, et al. Note to corporate executives and boards: Remember to read the fine print before purchasing that D&O Policy.
The Collar for Missing the Boat - To the Office of the Comptroller of the Currency (OCC) for dragging its feet on the robo-signing fraud. The OCC gives new meaning to the term "light-touch."
The Collar for Better Late Than Never - To the prosecutors who finally dismissed charges in the Enron Barge prosecution
The Collar for Singing the Best Version of Going In the Right Direction - To AG Holder for his memo that recognizes that sentencing should be based on an individual assessment
The Collar for Shirley Jackson Traditonalism - To the Department of Justice for thwarting all efforts to reform Federal Rule of Criminal Procedure Rule 16. The new DOJ has improved considerably under Mr. Holder, but still finds it hard to jettison a rigged system.
The Collar for Boosting the Incomes of Former AUSA & US Attorneys - BP
The Collar for Most in Need of Hearing Aid Batteries- To all of the federal circuit court judges who continue to reverse district court downward variances on dubious procedural and substantive grounds. Hey folks! Haven't you heard about Apprendi, Blakely, Booker, Gall, Kimbrough, and Spears?
The Collar for the Most Likely to Have its Theme Song "I Won't Back Down" - The Department of Justice, for trying to "fix" honest services.
The Collar for Being Fired Twice - To Rod Blagojevich for being impeached and fired on Celebrity Apprentice.
The Collar for US News WannaBe- To the ABA for its method of selecting best blogs. (two years in a row)
The Collar for Least Likely to Appear Together in "Dancing With the Stars" - President Obama and Justice Alito.
The Collar for Invited Error - To Justice Alito for his comments during President Obama's State of the Union address.
The Collar for the "Best Offense may NOT be a Defense" - To Steve Rattner for writing a book about his tenure as President Obama's car czar while under investigation by New York Attorney General Cuomo. Rattner still got slapped with a lawsuit by the state.
The Collar for Much Ado About Nothing - To the Department of Justice for devoting precious prosecutorial resources to insider trading and so-called foreign corrupt practices--activities that arguably shouldn't be illegal in the first place--while ignoring financial institution accounting irregularities that helped fuel the biggest recession since the 1930s.
The Collar for Most Likely to Star In A Prison Picture titled "Watch Our Government Waste Funds"- Wesley Snipes
The Collar for the Case Most Needing Review - Sholom Rubashkin's 27 year sentence.
The Collar for Least Likely to Appear on the T.V. Show "I've Got a Secret" - The U.S. State Department.
The Collar for Getting it Right - To SEC Inspector General H. David Kotz for his hard hitting, spot-on report detailing the SEC's failure to adequately investigate or regulate R. Allen Stanford.
The Collar for the Best Parent - retired years ago and renamed the Bill Olis Best Parent Award - unawarded this year since no one comes even close to Bill Olis, may he rest in peace.
(esp & slw)
December 27, 2010
Mens Rea Under Section 1001: Judge Kavanaugh's Concurrence in Moore
My colleague Ellen Podgor posted here about the Ninth Circuit's reversal of a securities fraud conviction on sufficiency grounds in United States v. Goyal, and specifically recommended Judge Alex Kozinski's concurrence. That concurrence led me to Judge Brett Kavanaugh's equally outstanding concurrence in United States v. Moore, 612 F.3d 698, 702-04 (D.C. Circuit 2010).
Moore involved an expansive application of 18 U.S.C. Section 1001. As explained by Judge Kavanaugh, "This case is novel: The Government has obtained a false statements conviction under 18 U.S.C. [Section] 1001 against an individual who signed the wrong name on a postal delivery form....Federal prosecutors tried Moore twice for various drug offenses, but both times the jury hung. In the second trial, prosecutors tacked on a false statements charge under [Section] 1001."
Judge Kavanaugh wrote separately to discuss the mens rea issues which can arise under the "ever-metastasizing" statute. His concurrence should be required reading for all white collar practitioners. In essence, Judge Kavanaugh argues that the Government must prove, in a Section 1001 prosecution, that the defendant knew he was violating the law. This is because Sectiuon 1001 contains a willfulness element. As Judge Kavanaugh points out, recent and not-so-recent Supreme Court pronouncements, in cases such as Bryan v. United States, 524 U.S. 184, 191-92 (1998), Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 n.9 (2007), and Dixon v. United States, 548 U.S. 1, 5 (2006), establish that a defendant cannot harbor willful criminal intent unless he knows in some sense that his conduct is unlawful. (The defendant need not know the specific code provision he is accused of violating, except in the case of highly technical statutes.)
There is no reason, absent some particular statutory twist, why this principle should not apply across the board to statutes containing a willfulness element. But many of the federal circuit courts take a different approach with respect to certain fraud statutes, such as Section 1001, apparently because some of their precedents predate the most recent Supreme Court holdings and dicta. Judge Kavanaugh, who once clerked for Judge Kozinski, concurred with the majority opinion in Moore, but only because the defendant did not request an appropriate jury instruction on the willfulness element. Here is Judge Brett Kavanaugh's Concurrence in U.S. v. Moore.