Thursday, December 29, 2011

2011 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 2011:

The Collar for Best Waste of Time - To those trying to redraft honest services legislation that will comply with footnote 45 in the Skilling decision.

The Collar for Most Important Piece of Legislation Not Enacted this Year - New laws to assure discovery is provided by prosecutors to assure a fair judicial system. 

The Collar for the Hottest Potato -  The Unreleased Report on discovery violations in the Stevens case. 

The Collar for the Gun Used Most Often in Corporate Hold-ups - The Foreign Corrupt Practices Act.(two years in a row)

The Collar for the Least Likely to Survive - A FCPA case that goes to trial

The Collar for the Case Most Needing Review - Sholom Rubashkin's 27 year sentence. (two years in a row) 

The Collar for the Shame on You for Doing That - Prosecutors who asked for 24 years in the Raj Rajaratnam case

The Collar for Most Likely to Miss an Iceberg in Alaskan Waters -  AUSAs who fail to provide Brady material to defense counsel despite new rules issued by DOJ

The Collar for the Most Baffling Media Relations - tied this year between Blago and Sandusky

The Collar for Dereliction of Duty - to the Department of Justice for failing to seriously investigate the biggest financial meltdown since the Great Depression

The Collar for Recidivism - to the Department of Justice's Fraud Section for Lindsey Manufacturing

The Collar for the Best Moment of Silence - To the Solyndra execs who recognized the importance of the 5th amendment constitutional right

The Collar for the Best Effort to Prolong his 15 Minutes of Fame - Joseph Amendola, the attorney for Jerry Sandusky, who conducted a highly-criticized press campaign with his client

The Collar for the Wildest Pitch - To the prosecutors in the Roger Clemens case that put it into extra innings

The Collar for the Misplacement of Funds - Tied - legislators for failing to give the SEC more funding so that we can avoid future Ponzi schemes like Madoff, yet giving funds for environmental raids like the one against the Gibson Guitar factory here

The Collar for Most illegitimate Prosecution -  To the prosecutors who are proceeding against John Edwards

The Collar for Sentencing Sanity - To Hon. Ellen Huevelle for consistently rejecting DOJ's draconian sentencing recommendations 

The Collar for the Best Willful Blindness - To the DOJ for not filing a brief in the Global Tech case where the Supreme Court reformed criminal willful blindness law in a civil case -- you mean they really didn't know about this case

The Collar for the Lowest Box Office Hit -  The denial of Wesley Snipes Cert petition that went almost unnoticed in the media

The Collar for Most Qualified Judge for American Idol -  Tied- To Hon. Roger Titus for voting off the government's case in the Lauren Stevens case and Hon. Howard Matz for voting off Lindsey Manufacturing

The Collar for the Best Portrayal of Casablanca's Captain Reynaud - Jon Corzine, who was "stunned" to hear of apparent diversions at MF Global.

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.

The Collar for Best Performance of "The Good Wife," old style - Anne Sinclair, Dominique Strauss-Kahn's wife, who supported him financially and publicly through it all.

The Collar for Best Effort to Support the Legal Profession - New York State Assemblyman William Boyland, who while under indictment for bribery allegedly sought an unrelated $250,000 bribe to pay his lawyer.

The Collar for Making a Mountain out of a Muffin -- The DOJ Inspector General for issuing a report criticizing the department for excessive charges for program meetings (and then backtracking on its findings).

The Collar for Declinations - to the Department of Justice for failing to indict anyone in the Robo-signing cases

(esp, Wisenberg, Goldman)

December 29, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 27, 2011

UK Bribery Act Decision Tree & Anti Bribery Chart

T. Markus Funk has two new extraordinary charts - a UK Bribery Act chart (Download FlowChart_UKBriberyAct_Draft7_Blue) and a chart that compares between the UK, US, German, Chinese, and India's anti-corruption laws (Download Anti Bribery Chart).  Thanks for sharing these.

(esp)

December 27, 2011 in FCPA | Permalink | Comments (1) | TrackBack (0)

New Cert Petition Filed in Skilling - Interesting Question

Jeffrey Skilling is trying for a second shot with the Supreme Court.  On November 28, 2011 he filed a cert petition with the Court (see here).  The questions presented are:

1. Whether Neder permits a court conducting a harmless-error analysis in the context of an "alternative theory" case to consider only the strength of the Government's case on the legally valid theory, without regard to whether the defendant contested that theory enough to create a factual dispute that rationally could have been resolved in the defendant's favor.

2. Whether a court conducting a harmless-error analysis in the context of an "alternative theory" case may categorically exclude the defendant's testimony in his own defense on the legally valid theory.

The government's response is due January 3, 2012.

(esp)

December 27, 2011 in Enron, Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

Monday, December 26, 2011

In Memoriam: Robert G. Morvillo (1938-2011)

Leading white collar practitioner Robert G. Morvillo passed away.  His firm notes here. The NYTimes has an article here.  Contributing blog editor Lawrence S. Goldman writes, "If I had ever been investigated by the U.S. Attorney for the Southern District of New York, I would have hired Bob Morvillo. In the current world, where many defense lawyers try to avoid getting into fights with prosecutors, Bob was a throwback. Although personally conservative on many criminal justice issues, Bob had no hesitancy in using his considerable skills and stature to challenge vigorously a prosecutor, both in the office hierarchy and in court, when he felt that his client was being treated unfairly. He was a brilliant, gutsy, no-nonsense lawyer. His death is a great loss to the white-collar defense bar."

(esp)

December 26, 2011 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Judge James B. Zagel: Out Of Order In Blagojevich Case Comments

    Hat tip to Scott Greenfield of Simple Justice for his outstanding post on Judge James B. Zagel's unfortunate public criticisms of one of Rod Blagojevich's criminal defense attorneys, Lauren Kaeseberg. Kaeseberg had the temerity to file a post-judgment Emergency Motion For Evidentiary Hearing Regarding Potential Juror Misconduct, based on news reports that the Blagojevich jury foreperson was publicly displaying her juror questionnaire, arguably in violation of a prior court order. Zagel denied the motion from the bench, calling it "harebrained," according to the Chicago Sun-Times' Abdon Pallasch. The Lake County News-Sun, picked up the "harebrained" comment and placed it in the headline of its story about the ruling. Above the Law  piled on with a frivolous post, and Kaeseberg has apparently been taking additional criticism on her web site. You can read the Emergency Motion above for yourself and draw your own conclusions. On its face, I see absolutely nothing wrong with it. 

    Judge Zagel also hit Kaeseberg, sworn in as an attorney in 2008, with the following zingers:

        "The motion was prepared without any adequate thought." It looks thoughtful enough to me. Sometimes criminal defense attorneys, particularly in the post-sentencing, pre-notice of appeal context, have to move swiftly in order to obtain a fact-finding hearing, make a record, and/or preserve error.

        "[The filing was] beyond my imagination." That's not exactly the legal standard.

        "You should seek outside counsel...and send a letter of apology to the juror." Why? The Emergency Motion was temperate in its discussion of the foreperson, who "has made many public appearances since the verdict...touting her decision and role in the Blagojevich jury."

         "By the absence of precedent, I assume you couldn't find precedent." As Greenfield correctly points out, lawyers don't always have on-all-fours (or, as they say in Chicago, "white horse") precedent at hand. The dedicated, imaginative lawyer works with principles and analogous cases and tries to make new precedent. It's called lawyering.

    Pallach also reports Judge Zagel saying that he "could hold Kaeseberg in contempt of court but was cutting her slack because she was a fairly new lawyer." On its face, the motion does not seem to be improper at all, much less contemptuous. Perhaps there is some backstory here that we are not aware of. The press seldom reports everything. But this is a serious public allegation for a federal judge to throw at a young lawyer, particularly given the unexceptionable nature of the Emergency Motion. 

    Ms. Kaeseberg defended her motion in the press. She stands by it. She is proud of it. Good for her. She has guts. She should wear Judge Zagel's criticisms as a badge of honor.

(wisenberg)       

December 26, 2011 in Judicial Opinions, Prosecutions | Permalink | Comments (1) | TrackBack (0)

Sunday, December 25, 2011

Professor Larry Ribstein Will Be Missed

The passing of Professor Larry Ribstein is being noted on many blogs (see here, here, here, and here)(See also University of Illinois College of Law notice here).  As it should be.  He was an extraordinary scholar and a welcomed and strong member of the academic blogosphere. His Ideoblog housed some of the best entries on overcriminalization and the injustices of sentencing in white collar cases. He was the master at analyzing and speaking about agency costs in the white collar arena. I had the pleasure of being a co-organizer of the Overcriminalization 2.0 Symposium that was presented and published by George Mason's Journal of Law, Economics & Policy, along with the National Association of Criminal Defense Lawyers, where Larry presented an incredible paper. Larry was never afraid to speak up against injustices, even when it was unpopular to do so.  He will be missed - RIP, Larry.

(esp) 

December 25, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Happy Holidays

Wishing everyone a happy, healthy, and peaceful holiday. 

(esp)

December 25, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Friday, December 23, 2011

Yes, Virginia: You Can Fight And Win FCPA Cases!

Just in time for the holidays, Judge Leon has thrown out all conspiracy counts against the second set of defendants on trial in the African Sting case. Leon's ruling resulted in the outright acquittal of Stephen Girodanella who was only charged in the conspiracy count. Tom Schoenberg of Bloomberg.com has the story here. The first African Sting case resulted in a hung jury and is set to be retried. A few weeks ago in California, Judge Howard Matz threw out the FCPA convictions against the Linsdey-Lee defendants and dismissed the indictment against them with prejudice. These FCPA cases are often fraught with difficulty for DOJ, even when prosecutors have what they think are incriminating tapes on hand. Hats off to the defendants and their attorneys who are daring to take these cases to trial.

(wisenberg)

Addendum - Check out this news release on this acquittal here. Congratulations also go to Carlton Fields attorneys Stephen J. Bronis and Paul A. Calli.

(esp)

December 23, 2011 in FCPA, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Thursday, December 22, 2011

Deputy Director of the Public Defender Service for the District of Columbia (PDS) - Vacancy Announcement

Vacancy Announcement for the position of Deputy Director of the Public Defender Service for the District of Columbia - Download PDS Deputy Director FINAL

(esp)

December 22, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 20, 2011

Big, Bold, and Bizarre: the Foreign Corrupt Practices Act Enters a New Era - New Scholarship

Check out Professor Mike Koehler's new article on the FCPA here -

In 2010, Justice Department Assistant Attorney General Lanny Breuer proclaimed "a new era of FCPA enforcement; and we are here to stay." This new era has already witnessed several developments worthy of discussion and examination.

In Part I of this article, I agree that a new era of Foreign Corrupt Practices Act ("FCPA") enforcement has indeed arrived; and I demonstrate, using 2010 FCPA enforcement actions and related developments, how big FCPA enforcement has become. That a new era of FCPA enforcement has arrived, begs the question however of why it has arrived given that the FCPA itself has not changed since 1998. I demonstrate that much of the largeness of FCPA enforcement in 2010 was the result of bold enforcement theories that seemingly conflict with congressional intent in enacting the FCPA. Part I of this article also demonstrates that FCPA enforcement in 2010 was more than just big and bold: it was also bizarre. Among other things, FCPA enforcement suffers from several inherent contradictions; and despite lofty anti-bribery rhetoric from the enforcement agencies, bribery and corruption is tolerated by certain companies in certain industries and for other strategic reasons.

Against the backdrop of a big, bold, and bizarre year in FCPA enforcement, Part II of this article highlights how 2010 was also defined by increased scrutiny of the FCPA itself and FCPA enforcement by the judiciary, Congress, the FCPA bar, and international monitor groups. This scrutiny crested in November 2010 when a Senate committee held oversight hearings on the FCPA, during which certain Senators also expressed concerns regarding the FCPA’s new era and a desire to reform the FCPA.

Part III of this article highlights 2010 developments related to the FCPA and FCPA enforcement, such as debarment issues and passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

This article concludes with Part IV, a look at the road ahead, as this new era of enforcement begins.

(esp)

December 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, December 19, 2011

FCPA Cheat Sheet

If you are looking for a one page summary that captures the essence of the FCPA, check out T. Markus Funk's - Walking Through the FCPA and Travel Act's Anti-Bribery Provisions here.  It's terrific.

(esp)

December 19, 2011 in FCPA, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, December 18, 2011

In the News & Around the Blogopshere

Saturday, December 17, 2011

"Crony Capitalism and Antitrust"

A new article titled, Crony, Capitalism and Antitrust by Professor Maurice E. Stucke - forthcoming in CPI Antitrust Chronical -

Abstract:
In August 2011, the United States brought a landmark antitrust lawsuit to prevent the merger of two of the nation’s four largest mobile wireless telecommunications services providers, AT&T Inc. and T-Mobile USA, Inc. But why are so many elected officials asking the Obama administration to intercede in the Department of Justice’s lawsuit to force a settlement? Why are they approving a merger that would likely lead to higher prices, fewer jobs, less innovation, and higher taxes for their constituents? Does it have anything to do with the money they are receiving from AT&T and T-Mobile?

This Essay examines the recent lobbying efforts in the AT&T/T-Mobile merger. AT&T spent $11.69 million on political lobbying in the first six months of 2011. In addition to hefty campaign contributions, it lobbied lawmakers with $52 steaks and $15 gin-and-cucumber puree cocktails.

But lobbyists, as this Essay outlines, are not the problem. The problem is the combination of lax campaign finance rules and antitrust’s prevailing legal standard, a flexible fact-specific rule of reason.

(esp)

December 17, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 16, 2011

Man Bites Dog, Hell Freezes Over, Fifth Circuit Reverses Child Porn Conviction For Insufficient Evidence

The decision was handed down earlier this week in U.S. v. Moreland. The majority opinion was written by Judge Dennis, who was joined by Judge DeMoss. From a practitioner's viewpoint, it is most notable for its discussion of every conceivable mitigating gloss on Jackson v. Virginia. The dissent, by Judge Jolly, had some fun with this: "The record does not reflect whether the jury box had more than twelve chairs, but we do know—and we know for sure—that two more jurors are trying to crowd into the box." The case involved two computers that three different people, including the Defendant, had access to.

 (wisenberg)

December 16, 2011 in Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 13, 2011

In the News & Around the Blogosphere

Sunday, December 11, 2011

Dual Sovereignty - New Article

Intersesting new article (available on Lexis and Westlaw) by Dr. Thomas White, JD, PHD. titled, "Limitations Imposed on the Dual Sovereignty Doctrine by Federal and State Governments."  He states:

"To ameliorate some of the unfairness inherent in multiple prosecutions by different sovereigns, the federal government and many states have established limitations, or even prohibitions, on subsequent prosecutions after an initial prosecution in which double jeopardy has attached. Part I of this inquiry discusses the dual sovereignty doctrine, focusing on its relationship to the Fifth Amendment prohibition of multiple prosecutions and punishments. Part II addresses the greater potential for multiple prosecutions occasioned by the increasing "federalization" of criminal law. Next, Parts III and IV, respectively, examine how the federal and state governments have addressed (or failed to address) the prospect of multiple prosecutions under the dual sovereignty doctrine. Part V concludes with suggestions aimed at resolving the issues of double jeopardy and dual sovereignty."

 (esp)

December 11, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, December 10, 2011

"Enforcing Integrity"

Enforcing Integrity is a new article by Professor Katrice Bridges Copeland in 87 Indiana Law Journal (2011)  

Abstract:
Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those programs on reimbursements for prescription drugs. In return for remaining eligible for Medicare and Medicaid reimbursements for their drugs, the manufacturer pays the government a huge fine and agrees to structural changes to the company designed to prevent future marketing violations.

The CIA seems like a reasonable response to the marketing violations until the pharmaceutical company engages in illegal marketing practices while still under the CIA for the previous marketing violation. In those situations, the government remains unwilling to pursue the pharmaceutical manufacturers in court and seek exclusion from Medicare and Medicaid. Rather than pursue exclusion, the government has entered into successive CIAs with pharmaceutical manufacturers and collected additional fines. The government enters into these agreements because exclusion of the manufacturer from participating in Medicare and Medicaid has devastating consequences that spill over to innocent patients, employees, and stockholders. Not only does the impact of the exclusion hit innocent third parties, but its imposition on the manufacturer substantially outweighs the harm the manufacturer inflicts through its improper marketing practices. The penalty for improperly marketing one drug is exclusion of all drugs produced by that manufacturer from Medicare and Medicaid. It is the government’s unwillingness to harm innocent third parties and its reluctance to impose a disproportionate penalty on drug manufacturers that leads them to CIAs. Thus, the problem is not that the government uses CIAs to combat health care fraud; it is that the government lacks penalties of increasing severity to impose when a manufacturer violates an existing CIA.

This Article argues that neither the exclusion of manufacturers from Medicare and Medicaid nor the use of Corporate Integrity Agreements coupled with large fines is an effective deterrent for pharmaceutical manufacturers that repeatedly engage in illegal marketing activities to promote their drugs. In particular, it argues that CIAs fail to deter drug manufacturers from engaging in illegal promotional practices because the penalty imposed and the cost of compliance with the CIA are significantly lower than the profits that a pharmaceutical company can obtain by illegally marketing its drugs. Further, the government’s willingness to enter into multiple CIAs with repeat offenders of the marketing rules rather than exclude them from Medicare and Medicaid substantially diminishes the ability of CIAs to deter illegal promotional activities. Finally, this Article argues that there are viable alternatives to be used in place of or in conjunction with CIAs, such as funding clinical trials, compulsory licensing, corporate officer liability, and targeted exclusion, that would be more effective deterrents for repeat offenders. Each of these remedies could be used to increase the severity of punishment when a one-time offender becomes a repeat offender. This Article concludes that these proposed measures would be more successful than CIAs at increasing compliance and enforcing integrity in drug promotion.

(esp)

December 10, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Upcoming Conferences

Danny Sokol, Antitrust & Competition Policy Blog, Beyond Leniency: Empirical Methods of Cartel Detection

ABA White Collar Conference, Miami Beach, Feb. 29 - March 2 here

NACDL White Collar Criminal Defense College at Stetson, Gulfport, Florida, March 15-20 here

(esp)

December 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, December 9, 2011

Corzine Surprises and Testifies

Former MF Global chief executive Jon Corzine chose not to invoke his constitutional right to silence and yesterday testified before a House committee.  While Corzine's decision to testify surprised me (see here), his testimony was what I would have expected of a corporate officer in his position -- he saw no evil, heard no evil and did no evil.  Indeed, Corzine was "stunned" when he was told that MF Global could not account for a reported $1.2 billion missing from customer funds.

Perhaps previewing a defense he may later present in a courtroom, Corzine said it was possible, although improbable, that his employees might have moved customer funds at what they believed was a direction from him.  If so, however, he testified they must have misunderstood or misinterpreted what he said.

(goldman)

December 9, 2011 in Congress, Privileges | Permalink | Comments (0) | TrackBack (0)

In the News & Around the Blogosphere