Tuesday, March 15, 2011

Brady Problems Outside Alaska

Following the Kohring Catastrophe (see here, here, and here), one has to start looking closely at other cases with alleged Brady violations. One such case is the Brown case pending in the 5th Circuit. Counsel for James A. Brown (Daniel K. Hedges, Sidney Powell, and Torrence E. Lewis) filed an extensive brief in the 5th Circuit that argues that exculpatory Brady material was not provided to the defense. (Brief- Download BROWN BRIEF FILED 122010).  Jim Brown, a former Merrill Lynch executive was convicted of perjury and obstruction and is contesting these charges on several grounds. The case has had an interesting turn of events.  It seems that the government filed a brief claiming that the defense failed to file a timely notice of appeal. Mind you this is after the government was given an extension of time to file its responsive brief by the defense. But it seems that the government had some mathematical computation problems, and on review they realized that Labor Day was in fact a federal holiday and the defense acted timely.  The government, when notified, recognized its error and corrected it by requesting to file a corrected brief, not a confession of error. (See Motion here - Download Brown's OppositionToGMforLeave.)  The important question here is whether there was a Brady violation.  Did a thousand pages of evidence not get revealed until 2010 and if so, why?

(esp)

March 15, 2011 in Enron | Permalink | Comments (0) | TrackBack (0)

Monday, March 14, 2011

Third Circuit Looking at Attorney-Client Privilege Case in a Corporate Setting

Sue Reisinger, Corporate Counsel, has a wonderful article titled, Court to Rule in Case of Imprisoned U.K. Exec That Carries Major Privilege Implications.

This case is another interesting one with a dilemma on whether corporate counsel has in fact represented an individual within the corporation. There are unusual twists to this case, that may exceed the confines of the existing 5-part Bevill standard (805 F.2d 120 (3d Cir. 1986)). Defendant argues that the Bevill standard should not "apply here, as here, both the individual and the corporation have an express attorney-client relationship with counsel." Reply Brief of Ian P. Norris - Download 2011-02-25 Norris Reply Brief  Defendant is represented on appeal by Christopher M. Curran, J. Mark Gidley, Eileen M. Cole, and Claire A. DeLelle of White & Case. This case and others are being watched closely by individuals within corporations and also corporate counsel. Many put the obligation on corporate counsel to clarify who they represent and more importantly, who they do not represent. But should the government also have an obligation here?

(esp)

March 14, 2011 in Privileges | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere

Second Circuit Reinstates Conviction in Clean Air Act Case

The Second Circuit Court of Appeals reinstated a conspiracy conviction coming from a Clean Air Act case.  The trial court had entered a judgment of acquittal on the conspiracy count.  The government appealed this decision and the Second Circuit vacated the judgment of acquittal on the conspiracy count and remanded the case to the district court for resentencing. See United States v. Desnoyers 

(esp) (w/ a hat tip to Linda Friedman Ramirez)

March 14, 2011 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

More on Alaskan Corruption Cases

For those interested in delving into the details of the Alaskan federal corruption cases, I recommend Cliff Groh's excellent Alaska Political Corruption blog. Cliff is a thoughtful commentator who has worked as a prosecutor and defense attorney. He attended all but one of the Alaskan federal corruption trials.

(wisenberg) 

March 14, 2011 in Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Sunday, March 13, 2011

The Vic Kohring Catastrophe: Some Reflections Upon Rereading the Ninth Circuit's Opinion

I'm calling it the Vic Kohring Catastrophe, and it should be one for the DOJ, but so far the patience of Congress and the district courts in the face of DOJ's repeated blockbuster Brady violations seems infinite. Here are the things that really stand out for me from the majority opinion. (All of the judges voted to reverse, but the dissenter would have dismissed the indictment with prejudice.)

1. The government withheld information from the defense that its star witness, Bill Allen, was under investigation by the Anchorage Police for sexual exploitation of minors. The government also possessed and withheld evidence that Allen encouraged the minors to lie and arranged for one of them to be unavailable to testify against him. In other words, he suborned perjury and endeavored to obstruct justice. It is jaw-droppingly incredible that this information was not disclosed to Kohring. It is jaw-droppingly incredible that, even after its motion to dismiss the Ted Stevens indictment, the government did not disclose this information to Kohring until his defense team asked for it and the case was remanded to the district court. As the Ninth Circuit patiently explains, this was highly relevant impeaching evidence, and the defense would have been able, at a minimum, to ask Allen questions about it. If he had lied, the government would have been obligated to correct his perjurious testimony. What could the AUSA(s) have possibly been thinking when he/she/they failed to disclose this information? That it was immaterial or cumulative? Line AUSAs have no business making such determinations. Neither do their superiors. If it hurts, turn it over. It is hard enough for the prosecutive mind set to even understand all of the information in a case that might be Brady material. If we make them the arbiters of what is material and cumulative, the answer will usually be weighted in favor of non-disclosure.

2. Many of the non-disclosed materials were FBI 302s and IRS reports of interviews with key government witnesses. I've said it many times before and will say it again. No prosecutor has any business withholding the 302 of a testifying government witness. First, the prosecutor is not as qualified to find impeaching and exculpatory material in a 302 as is the defense attorney, who is looking at the case from a defense perspective. Second, and of far more importance, the AUSA cannot sit there in court and determine on the fly, in a white collar case involving dozens or hundreds of witnesses, which of a given witness's testimonial statements are inconsistent with his myriad 302s. Yes, we know, the 302 isn't Jencks if the witness has not adopted it, but the risk is too great that it will become Brady. Almost all offices in almost districts turn these statements over before trial. Why wasn't it done here in a high-profile public corruption case?

3. The government withheld many handwritten interview notes containing exculpatory information. This points to a widespread problem. Most AUSAs in white collar cases still don't believe themselves under a duty to turn over handwritten interview notes or to reveal the exculpatory information reflected in these notes. The Ogden Memo does not fully solve this pervasive problem. Such handwritten notes can qualify as Jencks when the agent testifies and, as with 302s, may contain Brady information, either before trial starts or when an agent or another witness testifies. (It is very rare for an agent's handwritten notes to exactly match his or her final 302 report.) One of the handwritten notes that the government failed to turn over to Kohring was from an interview of Allen and indicates that: "Allen said he NEVER ASKED VIC TO DO ANYTHING IN EXCH. for cash or [unintelligible] or some benefit." Pretty important in a Hobbs Act-bribery case, no?

4, The government's failure to agree to a special verdict and/or special interrogatories clearly hurt its harmless error argument on appeal. Since the Ninth Circuit has no way of knowing what evidence, including the improperly withheld evidence, the jury might have relied on in reaching its general verdicts, the withheld evidence cannot be considered harmless. Opposition to special verdict forms and interrogatories is often short-sighted, and was clearly so in this case.

5. Finally, why wasn't all of this immediately revealed to Vic Kohring's defense team when DOJ moved to dismiss the Stevens indictment? The Stevens dismissal was obviously made at a very high level. Who knew about and failed to authorize disclosure to Kohring of this patently exculpatory material?

(wisenberg)

March 13, 2011 in Judicial Opinions, Legal Ethics, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Friday, March 11, 2011

More on the Brady Violation Reversal

Previously discussed is the vacating of Vic Kohring's conviction due to Brady Violations here. Check out Richard Mauer's piece in the Anchorage Daily News, Kohring Corruption Conviction Tossed by Appeals Court.

So what happens now in the accompanying case of Rep. Pete Kott, who still awaits the Ninth Circuit's decision?  If you were the government, what would you do before the court rules? 

(esp/wisenberg)

March 11, 2011 in Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

The Latest on the Ring Case

Check our Mike Scarcella, BLT Blog, Ex-Abramoff Associate Denied New Trial in Corruption Case

These are some of the motions that had been filed in this case:

Kevin A. Ring's Motion for Judgment of Acquittal - Download 12-15-10 MJOA (DE 233)

Kevin A. Ring's Motion for a New Trial - Download 12-15-2010 Motion for a New Trial (DE 234)

Kevin A. Ring's Reply in Support of Motion for Judgment of Acquittal - Download 1-28-2011 RING Reply in Support of MJOA (DE 241)

(esp)

March 11, 2011 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Court of Appeals Vacates Conviction Because of a Violation of Brady/Giglio

The Ninth Circuit Court of Appeals vacated a defendant's conviction and remanded the case for a new trial as a result of violations of Brady/Giglio. (USA v. Victor Kohring opinion) The defendant "Victor Kohring, a former member of the Alaska State House of Representatives, was convicted in federal district court on three counts of public corruption felonies: conspiracy to commit extortion and attempted extortion under color of official right and bribery under 18 U.S.C. § 371 (Count 1), attempted interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a) (Count 3), and bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B) (Count 4). Kohring was acquitted of Count 2—interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a)."  The Ninth Circuit court held: "We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring’s conviction and remand to the district court for a new trial."

Addendum - Court stated "On remand, the government disclosed, for the first time, several thousand pages of documents, including 'FBI 302 reports,' undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda, and police reports."

(esp)

March 11, 2011 in Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

In the News & Around the Blogosphere

Third Circuit Post Skilling Decision

The Third Circuit Court of Appeals examined convictions on five counts of honest services mail fraud in violation of 18 U.S.C. §§ 1341 and 1346 and one count of extortion under color of official right in violation of 18 U.S.C. § 1951(a) and vacated the convictions and sentences on the honest services counts, See opinion here. The defendant had argued:

"(1) in light of Skilling, the District Court erred in instructing the jury that it could convict him under the [honest services mail fraud] HSMF Counts based on the Concealed Conflict Object; (2) his HSMF convictions must be vacated because the error concerning the Concealed Conflict Object was not harmless beyond a reasonable doubt and (3) his Extortion Count conviction should be vacated due to "prejudicial spillover" from the HSMF Concealed Conflict Object error. Alternatively, [the defendant] contends that his convictions should be vacated because the District Court erroneously charged the jury in several other respects."

The court held:

"Upon careful review of the record below, it is not possible for us to conclude beyond a reasonable doubt that a rational jury would have convicted [the defendant] based solely upon the Bribery Object. At trial, the Government inextricably intertwined evidence of bribery and concealment. The District Court itself specifically charged the jury that it might convict [the defendant] on either the Bribery Object or the Concealed Conflict Object, and the District Court's evidentiary rulings throughout the trial may have been affected by the existence of the Concealed Conflict Object charges. Moreover, there is no escaping the fact that, while understandably emphasizing the Bribery Object to a greater degree, the United States did argue that the Concealed Conflict Object alone was a sufficient basis for conviction."

(esp) 

March 11, 2011 in Fraud, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

Thursday, March 10, 2011

Second Circuit Decision on Former COO & President of Monster

The second circuit court of appeals issued this opinion affirming in part (the convictions) and vacating in part (the forfeiture order) of defendant James J. Treacy, former COO and President of Monster Worldwide, Inc. The court stated:

"(1) that the district court erred under the Confrontation Clause in limiting Treacy’s cross-examination of a Wall Street Journal reporter on the grounds of the journalist’s privilege, but that the Government has shown beyond a reasonable doubt that the error was harmless; (2) that the district court did not abuse its discretion in declining to ask prospective jurors certain questions requested by the defense; and (3) that the district court committed clear error in determining the forfeiture amount with respect to one of the option grants, requiring vacatur and remand for recalculation and entry of a new forfeiture order."

The court noted:

Treacy, who left his position as an officer in 2002 and left Monster’s board in 2003, was one of several Monster officials implicated in a long-term conspiracy to backdate stock options at the company and obtain favorable strike prices for the officials and others while creating the false appearance that the options had been granted at fair market value.Treacy was indicted in August 2008 on: (1) one count of conspiracy to commit securities fraud, file false reports with the Securities and Exchange Commission ("SEC"), make false statements to auditors, and falsify books and records, in violation of 18 U.S.C. § 371; and (2) one count of substantive securities fraud, in violation of 15 U.S.C. §§ 78j(b), 78ff, 17 U.S.C. § 240.10b-5, and 18 U.S.C. § 2. A jury found Treacy guilty on both counts, and in September 2009 the district court (Rakoff, J.) sentenced Treacy principally to 24 months’ imprisonment and ordered him to pay restitution and forfeiture in the amount of $6,332,995. 

(esp)

March 10, 2011 in Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 8, 2011

In the News & Around the Blogosphere

Sue Reisinger, law.com, Ex-General Counsel, 4 Other Former WellCare Execs Indicted in Alleged Medicaid Fraud (w/ a hat tip to Ivan Dominguez)

David S. Hilzenrath, Washington Post, SEC inspector general probing agency's handling of Madoff fraud

Neil MacFarquhar, NYTimes, Egypt’s Ex-Interior Minister Pleads Not Guilty to Corruption

Mark Weubraub, Reuters, SEC investigating Kraft for corruption in India

Terrie Morgan-Besecker, The Times Leader, Ciavarella asks reversal of guilty verdict -The former Luzerne County judge was found guilty of racketeering and other charges at a jury trial in February.

DOJ Press Release, Former Campaign Treasurer for U.S. Congressman from New Jersey Pleads Guilty to Embezzling Campaign Funds

David Evans & David Glovin, Bloomberg, CDO, CDS Fraud Probes to Be 2011 Priority, Prosecutor Says (w/ a hat tip to Tiffany Joslyn)

DOJ Press Release, Former UBS Client Sentenced for Hiding Millions in Offshore Bank Accounts -Paid $2.1 Million Penalty to IRS

Business Wire, 'Honest Services' Conviction Vacated for Former Lee County Commissioner Vicki Lopez Lukis

DOJ Press Release, Owner of Illinois Technology Company Pleads Guilty in Scheme to Defraud the Federal E-Rate Program

DOJ Press Release, Former Senior Vice President of Colonial Bank Pleads Guilty to Fraud Scheme

DOJ Press Release, Puerto Rico Senator and Businessman Convicted in Bribery Scheme

Ross Todd, Am Law Daily, Starr Report: Prosecutors Expect a Bristol Plea, Winston Responds to Civil Suit (w/ a hat tip to Ivan Dominguez)

Jim Zarroli, npr, Wiretaps May Play Big Role In Insider Trading Case (w/ a hat tip to Ivan Dominguez)

Mark Hamblett, NYLJ, law.com, Defense Faces Daunting Task as Insider Trading Trial Begins

(esp)

March 8, 2011 in News | Permalink | Comments (0) | TrackBack (0)

Monday, March 7, 2011

Testimony of Secretary Timothy F. Geithner - House Committee on Financial Services

Here's his testimony. Some highlights -

  • "For decades, the government supported incentives for housing that distorted the market, created significant moral hazard, and ultimately left taxpayers responsible for much of the risk incurred by a poorly supervised housing finance market"
  • "The Administration is committed to a system in which the private market – subject to strong oversight and strong consumer and investor protections – is the primary source of mortgage credit."
  • "Alongside these efforts, Treasury, the Department of Housing and Urban Development, and the Department of Justice are coordinating the Administration’s interagency foreclosure task force, which is comprised of eleven federal agencies and also works closely with the state Attorneys General.  In light of reports of misconduct in the servicing industry, the task force is currently reviewing foreclosure processing, loss mitigation, and disclosure requirements at the country’s largest mortgage servicers.  Those that have acted improperly will be held accountable." 

(esp)

March 7, 2011 in Congress, Government Reports, News | Permalink | Comments (0) | TrackBack (0)

Government Withdraws Objection to the Filing of Amici Briefs in Rubashkin Case

Blogged here was a discussion of the initial government response to amici filing briefs in the Rubashkin case.  It is nice to see that the government has now withdrawn its objection to the filing of these briefs. Govts. Withdrawal of Objection - Download Government withdrawal of objection As previously stated, amici briefs serve an important function and courts often rely on amici to present matters that need to be addressed in a case.   So it is good to see the government - acting as "ministers of justice" - and having trust in the courts  to hear and read everything.

(esp)

March 7, 2011 in Investigations, News, Prosecutions | Permalink | Comments (0) | TrackBack (0)

The Feng Shui of Pepper

As predicted here in December, sort of, the U.S. Supreme Court partially reversed the Eighth Circuit last Wednesday in Pepper v. United States. (See Pepper). (This post will not concern itself with the "law of the case" part of Pepper, in which the Eighth Circuit was upheld.) The Eighth Circuit's deeply baffling and inhumane decision, flatly prohibiting sentencing courts from considering any evidence of a defendant's post-sentencing rehabilitation in cases remanded from the courts of appeals, not only resulted in the re-incarceration of a fully rehabilitated offender. It also blithely ignored a plethora of recent Supreme Court sentencing case law. The Supreme Court opinion (a majority opinion) by Justice Sotomayor is a ringing reaffirmation of the principle that sentencing courts can and must consider, in the words of Williams v. New York, "the fullest information possible concerning the defendant's life and characteristics." 

The Court established in Booker, and reiterated in Gall and Kimbrough, that a sentencing court has broad discretion to consider nearly every aspect of a particular case (and a particular defendant) in fashioning an appropriate sentence. "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”  Gall, 552 U.S. at 52 (citing Koon v. United States, 518 U.S. 81, 113 (1996)).

Justice Sotomayor cited the above language from Koon and Gall and made it a centerpiece of her opinion in Pepper. The Eighth Circuit's decision was so bad that even the government confessed error. The Court ruled that 18 U.S.C. Section 3742 (g)(2), which prohibits, in most instances, a sentencing court from sentencing outside the original Guidelines range upon remand, is unconstitutional. (But the Eighth Circuit had not relied on or cited this statute in its opinion below.) The Court clarified, once again, that sentencing courts are free to disagree with Guidelines policy statements.

Pepper will obviously benefit white collar offenders, as it re-affirms the broad power of sentencing courts under the Booker-Gall-Kimbrough regime and re-emphasizes their power and duty to consider evidence pertaining to each defendant's unique personal circumstances. One of the most important things about Justice Sotomayor's opinion is that it is a solid majority opinion (5 out of 8 justices) in favor of continuing the Booker-Gall-Kimbrough line.

Justice Sotomayor's opinion is remarkably restrained, given that the Eighth Circuit's sub silentio defiance of Booker-Gall-Kimbrough principles resulted in the 18 month re-incarceration of a fully rehabilitated offender who had painstakingly put his life back together.

It is difficult to read Justice Breyer's concurrence as anything other than a signal to the lower courts to continue to interpret the Booker-Gall-Kimbrough line in as cramped a manner as possible. How unfortunate if it causes other federal circuits to repeat the Eighth Circuit's tragic mistake.

(wisenberg)

March 7, 2011 in Judicial Opinions, Prosecutions, Sentencing | Permalink | Comments (0) | TrackBack (0)

Sunday, March 6, 2011

20th Annual National Seminar on Federal Sentencing Guidelines

May 4-6 in Orlando, Florida, the Tampa Bay Chapter of the Federal Bar Association, The NACDL, and the Criminal Justice Section of the ABA, hold the Twentieth Annual National Seminar on the Federal Sentencing Guidelines. (see here) This is the premier yearly federal sentencing conference, providing the basics of federal sentencing for newcomers and the very latest updates and practice tips on what is happening, practically and theoretically, in federal sentencing courts throughout the country. In a post-Booker world, it is critically important to know how best to advocate within and outside of the sentencing guidelines.  With increased judicial discretion at the district court level, the distinct work of judges, trial counsel, and probation officers becomes particularly important.

This year the conference offers panels with judges such as Hon. Fred Block, Paul Borman, Steven Merryday, Jed Rakoff, Charlene Honeywell, Robin Cauthron, Robert Hinkle, John Antoon, II, William K. Sessions, III, John Gleeson, Robert Pratt, and others. There are breakout sessions on sentencing in securities cases, drug offenses, pornography offenses, and fraud, just to name a few of the topics. The conference also has sentencing mitigation specialists speaking. Co-blogger Sol Wisenberg and I will both be there and look forward to seeing everyone for this highlight event.

(esp)

March 6, 2011 in Conferences, Sentencing | Permalink | Comments (0) | TrackBack (0)

Wesley Snipes Files Cert Petition

Actor Wesley Snipes has filed his cert petition in the Supreme Court. The two questions presented are:

1. Is an accused person deprived of the right under Article III and the Sixth Amendment to be tried only by a jury of the community where venue is proper, when factual questions determinative of whether venue has been correctly laid are determined solely by a jury selected in the place challenged by the defendant as incorrect?

2. Where venue is a contested factual issue in a criminal trial, does the government bear a burden of proof beyond a reasonable doubt or only by a preponderance of the evidence?

Petition - Download WTS cert final 022811

(esp)

March 6, 2011 in Celebrities, Tax | Permalink | Comments (0) | TrackBack (0)

Saturday, March 5, 2011

ABA White Collar Crime Conference - At What Cost Winning

This panel was moderated by Michael Pasano, Carlton Fields. It started with a scene from the Verdict with Paul Newman - a scene that explores the question of the tension between justice and winning. The presentation used three movie clips from different movies to discuss the ethical conduct of lawyers.

One of the first topics explored was the prosecutor/defense attorney relationship.  Nina Marino, Kaplan Marino, spoke about how she has never been a prosecutor.  Mark Filip, Kirkland & Ellis, talked about the role of a lawyer in the court, but how you can be colleagues outside the courtroom.   Judge Paul Borman noted that in criminal cases there is civility - he does not always see the same in civil cases. Andre Birotte, Jr., U.S. Attorney for the Central District of California, talked about the training that goes on in his office. There is no case worth cutting corners.

The panel looked at the celebrity defendant, leaks to the press, questioning the venire, the more aggressive use by prosecutors of filing pre-trial motions, and an assortment of other ethical issues.  Some highlights included:

  • Nina Marino said there is one thing you have - it's your integrity - and if you lose this you lose your ability to effectively represent your client. 
  • U.S. Attorney Melinda Haag, said that when the case involves a celebrity, she tries to treat it the same as any other case. She tries to put the celebrity status aside. 
  • Mark Filip noted that structure/procedure can make a difference in a case -  for example, whether it is the local US Attorney handling the case or a special prosecutor - especially if this is the career case for the attorney and it is all they are handling. 
  • Judge Borman  talked about how difficult it can be for the prosecutor to comment on evidence that did not come in but was mentioned by the defendant in perhaps opening statement.  It is espcially difficult when it might cross into the realm of the defendant not testifying, which of course the prosecutor can make no comment about.
  • The panel talked about how DOJ views defense counsel when they bring what the prosecution believes to be frivolous claims - claims of prosecutorial misconduct. This led to a discussion of bullying by the government. Michael Pasano gave the example of the prosecutor who threatens that if you don't take a plea the prosecutor he/she will indict the wife and others related to the target. U.S. Attorney Melinda Haag tried to get the audience to see another side to this action, using an example of a drug case where the mother, father, and grandmother are all involved.  She said she was thinking about a small child in the negotiation and who would care for that child.
  • In discussing leaks, U.S. Attorney Birotte spoke about the difficulties with leaks. He said they tell their agents that things need to be kept confidential. US Attorney Haag reminded the audience of First Amendment rights here.
  • Nina Marino spoke about the importance of being able to question the jury venire.  Judge Borman initiates the voir dire, but lets the parties do follow-up questions. Michael Pansano noted that many judges don't allow follow-up questions.   
  • U.S. Attorney Melinda Haag thought a more aggressive use of pre-trial motions by prosecutors was good.  She said you don't want to pollute the trial with inadmissible evidence.  But Judge Borman jumped in here and said - why don't you run it by the defense first- maybe they'll agree and a hearing will not be necessary on this.

The panel finally got to a discussion of Brady- a topic of enormous importance. Mark Filip said that as a prosecutor you need to try and find the truth with a cooperator. A healthy dose of cynicism with a cooperator is important. U.S. Attorney Andre Birotte said you need to try and corroborate the information given by cooperators.  If you get information that is helpful to the defense you need to turn it over. He said he thinks the department takes this seriously. He said that some small number of defense attorneys are using prosecutorial misconduct as part of the playbook. On the other side, Nina Marino told of her experience in representing a cooperator - that a main witness being a substance abuser - was not being considered by the government to be Brady. She noted that the agents were deciding that something would not be helpful to the defense - things that she thought she could use if she were representing the defendant. Judge Borman noted that if in doubt of whether something is Brady - go to the judge and ask him or her.  Don't take a chance of needing to retry the case.  He has received items from prosecutors and it was clear that it was Brady

I was troubled by the Brady discussion and am glad the ABA is doing a study to find out what is happening across the country. To me the problem here is clear -  can the government really know what is useful to the defense. Prosecutors can't and shouldn't be making the determination of whether something is Brady or not. Hopefully there will be a change to the rules of criminal procedure to recognize the existing problems in discovery practices.

(esp)

March 5, 2011 in Conferences, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Thursday, March 3, 2011

ABA White Collar Crime Conference - Honest Services Fraud Panel

This panel was moderated by Professor Julie O'Sullivan of Georgetown Law School.

It started with Denis J. McInerney, Chief of the Fraud Section of the Criminal Division of the Department of Justice, who gave the history of the mail fraud statute from its inception up to the Court's decision in Skilling.

The second panelist was Martha Boersch of Jones Day.  She spoke about the 110 cases that have been examined post-Skilling. Some circuits have said a fiduciary duty is required - but not all circuits have held this. Another big issue is whether the government has to prove a quid pro quo - she noted the split in some court cases on this issue. There is also uncertainty as to what a quid pro quo would be in this context. Does the government have to prove a contemplated economic harm? There are likely to be future cases on the definition of honest services coming from instructions given in mail fraud cases.

The third speaker wasFrank Razzano, Pepper Hamilton,who spoke about five open questions: 1) Does it require a fiduciary duty? (He said you should make sure that there is a breach on the part of the payor); 2) Is legislation necessary to address this issue or is there a way around this for prosecutors; (He spoke about the case of U.S. v. Jain here- how you can use a pecuniary theory of mail fraud; 3) Does Skilling limit the stream of benefits theory?  4) He noted that you need to analyze the intent of the payor and payee carefully   5) Gratuities - does honest services fraud include this, or is it limited to bribery?  He looked at some of the cases where these issues had arisen.

Finally Professor Julie O'Sullivan talked about congressional acts that have been introduced since Skilling.

(esp)(blogging from San Diego)

March 3, 2011 in Conferences, Congress, Fraud, Prosecutions | Permalink | Comments (2) | TrackBack (0)