March 18, 2011
Judge Denies Motion to Disqualify DOJ in Brown Case
The issue was raised here whether Lanny Breuer had a conflict in the James A. Brown case as his name appeared on the brief after he had recused himself. The government opposed defendant's motions to disqualify the DOJ and other motions related to this issue (see here). The court now has denied the appellant's motion to strike appellee's corrected brief, motion to disqualify all DOJ attorneys, motion to stay further proceedings, and motion for the appointment of an independent prosecutor. So it's much ado about nothing on this one. The real issue, however, remains - was there a Brady violation in this case? (see here)
Ninth Circuit - Exporting Thermal Imaging Cameras Requires License
In United States v. Guo, the defendant was convicted with knowingly and willfully conspiring to export, and attempting to export, ten export -controlled cameras to China without a license. The defendant argued on appeal that the statute 50 USC s 1705 was too vague and thus there was a due process violation. The Ninth Circuit ruled that the complexity of a statute is not the same as vagueness. Since the statute requires "that the person knew that he needed a license but did not get one," the court did not see a danger of someone violating the statute "unwittingly."
In the News & Around the Blogosphere
David Ingram, BLT Blog, Republicans Launch New Attacks on Deputy AG
Zoe Tillman, BLT Blog, Judge Denies Request to Move Trial for Alleged Ponzi Scheme Orchestrator to Florida
DOJ, Assistant Attorney General Lanny A. Breuer of the Criminal Division Speaks at the 3rd Russia and Commonwealth of Independent States Summit on Anti-corruption (he talks a good bit about the FCPA)
T. Markus Funk, WestlawJrl - White-Collar Crime, Charges that Sting: 'Honey Laundering' and the New Era of Obstruction Prosecutions
Chris Johnson, law.com, American Lawyer, Leaked Government Documents Reveal Weakening of U.K. Bribery Act
Andrew Longstreth, Reuters, White-collar wiretaps can lead to legal challenges
March 17, 2011
Ninth Circuit Says Predicates for Section 1028A Are Merely Descriptive
A Ninth Circuit opinion in United States v. Harrell examines a question of first impression for the 9th Circuit: "whether the 'relating to' parentheticals within 18 U.S.C. s 1028A(c) limit the statute's otherwise clear articulation of which offenses may serve as predicates for application of s 1028(a)." Among the charges against Harrell were a charge of aggravated identity theft. The court held that "'relating to'parentheticals do not limit the statute's effect, but serve simply as descriptive aids." Finding the plain text clear, the court did not "trudge through the deep mud of legislative history." Neither did the court use the rule of lenity.
DOJ Says "Arrests Follow Largest Corporate Fraud Investigation" for Indiana
A DOJ Press Release says: "Three former executives of Fair Financial Company, an Ohio financial services business, were arrested today and charged in an indictment filed in the Southern District of Indiana for their roles in a scheme to defraud approximately 5,000 investors of more than $200 million." The press release also states that "'These arrests follow the largest corporate fraud investigation in the history of the FBI in Indiana which resulted in over 5,000 victims and an estimated loss of $200 million dollars,'said Special Agent in Charge Welch."
Indy.com here. Check out the picture - Was a perp walk really necessary in a case like this?
Indictment - Download Durham
Government's Response in Brown - Just a Clerical Error
Discussed here is the alleged Brady violations in the James A. Brown case, a former Merrill Lynch executive who was convicted of perjury and obstruction and is contesting these charges on several grounds. Then posted here was a brief filed in the Brown case that argued concerning a possible conflict because Lanny Breuer's name appeared on the brief and he was conflicted out of the case. The government now responds basically saying that this is just a clerical error.
Government's Brief - Download Filed Version of Government's Opposition to Brown's Motion to Strike
March 16, 2011
Does Lanny Breuer Have A Conflict?
Discussed here is the alleged Brady violations in the James A. Brown case, a former Merrill Lynch executive who was convicted of perjury and obstruction and is contesting these charges on several grounds. So far the case has been fraught with issues. The government filed a corrected brief, not a confession of error, caused by some mathematical computation problems. Now it seems the corrected brief has Lanny Breuer's name on it. According to the defense brief filed by Counsel for James A. Brown (Daniel K. Hedges, Sidney Powell, and Torrence E. Lewis), Breuer used to represent a co-defendant and had been conflicted out of the case. Is this an oops....
Brief of Defense - Download Motion to Strike Governments Brief FILED COPY
March 15, 2011
Weyhrauch Mail Fraud Case Finally Dismissed
As noted here (KTUU.com, Weyhrauch Gets Fine, Probation in Corruption Case Plea) and also Becky Bohrer, Anchorage Daily News (AP),Weyrauch Gets Suspended Jail Sentence, $1,000 Fine , the Weyhrauch case is finally being resolved. But lets look at what is happening here -
Weyhrauch was initially charged with an individual named Kott, who is now awaiting a ruling on whether his case will be dismissed for discovery violations. Perhaps we have a preview of the reasoning of the Ninth Circuit Court of Appeals by the decision last week in the Kohring case that found that the government had failed to provide Brady material to the defense. (see here, here, and here).
Weyhrauch's case went to the Supreme Court as one of three cases being examined as part of the "honest services" doctrine that prosecutors stretched to a point that the Court decided to place new limits upon -- requiring a showing of "bribery and kickbacks." In its ruling in Skilling, the Court did not directly address the question raised in the Weyhrauch case as to whether you needed a violation of state law for a mail fraud charge that uses honest services. Rather the Court reframed the question with a new test of "bribery or kickbacks." (see also here)
Now Weyhrauch is back in court pleading to the charge noted in the articles above. In dismissing the federal case against him he filed a non-opposition to the motion to dismiss as follows:
"Weyhrauch non-opps the motion to dismiss for two reasons. First, this was a very weak case from the beginning and all the evidence the government ever really had was that Weyhrauch had participated in, aided, or abetted a lobbyist engaging as a lobbyist without being registered. See, attached Exhibit 1, Information and Plea Agreement. Now that Weyhrauch has pled to that crime in state court, there are no longer facts to support a federal indictment. Second, Weyhrauch believes there is evidence to support dismissal of the indictment because of "misconduct before the grand jury which returned the indictment against Weyhrauch." (reference to a letter filed under seal), which is filed under seal because it refers to grand jury testimony and other grand jury proceedings. If the standard is that dismissal is appropriate when the ends of justice are served, then this case qualifies by any measure."
The more important question is: Did the ends of justice warrant the federal government using the mail fraud statute to bring this alleged state case in the first place?
In the News & Around the Blogosphere
KTUU.com, Weyhrauch Gets Fine, Probation in Corruption Case Plea (yes, that was one of the trilogy of cases that went with Skilling to the Supreme Court)
DOJ Press Release, UBS Client Sentenced in San Diego for Hiding Assets in Secret Bahamian and Swiss Bank Accounts; Edvard Pettersson, Bloomberg Businessweek, UBS Client in San Diego Gets Probation for Hiding Accounts
Sue Reisinger, Corporate Counsel, law.com, WikiLeaks Release Prompts Call for Probe of BAE Saudi Arms Deal
David Ingram, BLT Blog, Chamber Hires Mukasey to Push FCPA Changes
Jeremy D. Frey, Hold ’Em or Draw: The Strange Case of U.S. Enforcement Efforts Against Internet Gambling and Peer-to-Peer Poker - (originally White Collar Crime Report)
Holder on Health Care Fraud
AG Holder speaking at the Detroit Health Care Fraud Prevention Summit stated:
"In just the last fiscal year, we obtained settlements and judgments amounting to more than $2.5 billion in False Claims Act matters alleging health care fraud – the largest annual figure in history and an increase of more than 50% from fiscal year 2009. We also opened more than 2,000 new criminal and civil health care fraud investigations, reached an all-time high in the number of health care fraud defendants charged, stopped numerous large-scale fraud schemes in their tracks, and returned more than $2.5 billion to the Medicare Trust Fund and more than $800 million to cash-strapped state Medicaid programs."
Full press release here.
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?
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?
In the News & Around the Blogosphere
AP, NYTimes, Lawyer to Pay $150 Million in Foreign Bribery Plea Deal (w/ a hat tip to Ivan Dominguez)
Brock Vergaris, Washington Post, Blackwater contractors convicted in Va. trial (w/ a hat tip to Ivan Dominguez)
Peter Lattman & Andrew Ross Sorkin, Dealbook, NYTimes, Figure in Insider Case Sought to Quit Goldman
DOJ Press Release, Former President of TBW Pleads Guilty to Fraud Scheme
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)
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.
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?