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?
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)
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."
In the News & Around the Blogosphere
Anthony J. Franze & R. Stanton Jones, The Pulse - Washington Legal Foundation, Lessons From the Rubashkin Amicus Debacle: The Government’s About-Face Calls for a DOJ Policy on Friend-of-the-Court Briefs (hat tip - Stephen Richer)
Mark Hamblett, NYLJ, law.com, Opening at Inside-Trading Trial Show Different Views of Data; Peter Lattman, NYTimes, It’s Greed vs. a Picture of Solid Research in Galleon Trial
Carrie Ritchie, IndyStar, Marion Co. prosecutor creates white-collar crime hotline
Nate Raymond, NLJ, law.com, Former Dewey & LeBoeuf associate charged with insider trading
Bill Rankin, Atlanta Jrl Constitution, Ex-judge Camp sentenced to 30 days in prison
DOJ Press Release, Former Alabama Mayor Pleads Guilty to Filing False Tax Return
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."
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.
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.
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 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
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."
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.
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.
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.
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