March 25, 2011
Commentary on Court Dismissal of Indictment Against Former VP & Associate General Counsel of GlaxoSmithKline
Check out - Sue Reisinger, Corporate Counsel, She Asked, Counsel Told: Case Against Glaxo Attorney Is Dismissed
The former VP and Associate General Counsel of GlaxoSmith Kline had been charged with a 6-count Indictment for the alleged crimes of obstruction (1512), falsification and concealment of documents (1519) and false statements (1000). The Indictment against Lauren Stevents has now been dismissed, but it is without prejudice.
Stevens claimed a defense to the charges of advice of counsel in her responses to the FDA's inquiry. The government response was that 18 USC 1519 is a general intent crime and therefore a "good faith reliance on advice of counsel is only a defense to specific intent crimes."
The court did not agree with the government, citing applicable sources that provide a solid basis for its holding. My take is that the statute clearly is requiring two intents - to "knowingly alters, destroys, multilates, conceals, coversup, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impeded, obstruct, or influence the investigation ....." With two intents it seems clear that one should use specific intent here.
But what is more questionable here is that the government thinks that specific intent should not be required here. Should you really prosecute someone who may not have had the specific intent to do these alleged acts? Will this achieve the deterrence from criminality that we desire? Irrespective of whether one accepts the government's claim that advice of counsel is an affirmative defense or the defense and court position that it negates the mens rea, is prosecution of this alleged conduct the way we want to spend valuable tax dollars?
This case is a perfect example of how we are failing to use our resources wisely. Do we really need to spend money prosecuting folks who may not have complied with a government discovery request properly? Or would the money be better spent using it for educating lawyers and others of how to respond to government inquiries correctly. And what happens if we turn the tables - should we start prosecuting Assistant United States Attorneys who do not comply with constitutional requirements of discovery, or would our resources be better spent educating them of the importance of upholding these constitutional rights.
Bottom line - don't refile this case.
Addendum - See here
March 24, 2011
Kott Decision Matches Kohring - Prosecutors Violated Brady
In an unpublished memorandum decision, the Ninth Circuit Court of Appeals found that Peter Kott's conviction, like Kohring, needed to be reversed because of Brady violations by prosecutors. The court in citing the Supreme Court's decision in Bagley said, that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." The court remanded it to the district court to determine if the prosecution "acted flagrantly, willfully, or in bad faith."
Judge Fletcher concurred and dissented in part, finding a new trial an insufficient remedy. She wrote to express the view that the court's supervisory authority should be used and the indictment should be dismissed with prejudice. Judge Fletcher stated:
"I am deeply troubled by the government's lack of contrition in this case. Despite their assurances that they take this matter seriously, the government attorneys have attempted to minimize the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair trial -- despite the the government's failure to disclose thousands of pages that reveal, in part, prior inconsistent statements by the government's star witnesses, ..., regarding the payments Kott allegedly received."
In the News & Around the Blogosphere
Tampa Tribune (AP), Charlie Crist testifies at Sansom corruption trial
David Ingram, NLJ, law.com, Michele Roberts Moves From Akin Gump to Skadden
Globe Staff, Boston Globe, Nixon Peabody taps Ryan for crime group post
DOJ Press Release, Founder of A&O Entities Convicted in $100 Million Fraud Scheme
Law360, 3rd Circ. Upholds Prison Stint For Morgan Crucible CEO
Sue Reisinger, Corporate Counsel, law.com, Lips Unsealed: Third Circuit Ruling on Privilege Worries Defense Bar
Martha Graybow, Reuters, Analysis: Scrushy acquittal may have lessons for Rajaratnam
March 23, 2011
Brady Discovery - Is Defense Getting It One Week Before Trial?
Previously blogged was a FCPA Act case with some interesting issues - such as whether the FCPA applies to state-owned entities. (see here) and whether a grand jury was being used for trial preparation (see here). The government had filed a supplemental memorandum and declaration of a US State Dept. official on the "foreign official" issue. The court struck the government's supplemental filing and the declaration of the State Dept. official, refusing to accept that courts needed to defer to foreign policy concerns. The hearing on the motion is set for later this week. (See also Mike Koehler, FCPAProfessor, here)
In the meantime, defense counsel has been busy. They filed a motion claiming a Brady violation by the government. This is clearly a "hot" topic these days. They claim that it's a week before trial and the government did not provide exculpatory material that the government has had for "five and one-half weeks." Defense counsel also claims that:
"[h]ad the defense had this information in a timely fashion, it could have attempted to depose the witnesss under Federal Rule of Criminal Procedure 15, sought other evidence to corroborate this information, and followed through with our own investigation. There is no sound reason and no justification for the government's suppression of this favorable evidence."
The defense offers suggestions on possible remedies that the court could employ here. These include, "consistent with W.R. Grace, the jury should be instructed that the prosecution withheld exculpatory evidence from the defense, contrary to its obligations."
Third Circuit Rules - OK for Corporate Counsel to Testify Against CEO
In a closely watched case (see here), the Third Circuit was asked to consider whether corporate counsel had in fact represented an individual within the corporation and as such the attorney-client privilege should apply. Defendant had argued 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.
The Third Circuit issued an unpublished opinion that resolves this issue in a paragraph, stating in part that:
"[t]he District Court in this case held an evidentiary hearing and ultimately determined that Norris failed to meet his burden in asserting his privilege pursuant to the five-factor test set forth in In the Matter of Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120, 123 (3rd 1986). The District Court did not legally err in applying this test, and we see no clear error in the District Court's holding based on the facts elicited in the evidentiary hearing."
To all the corporate executives that are cooperating with corporate counsel thinking that the individual is representing them - beware....
Opinion- Download Opinion
March 22, 2011
In the News & Around the Blogosphere
Amanda Bronstad, NLJ, law.com, ICE attorney gets 17-year sentence for taking bribes
Jerry Mitchell, Jackson Clarion-Ledger, Minor, Ex-Judges Still in Limbo
ABC6OnYourSide, Ex-judge goes on trial in Ohio corruption probe
9th Circuit - United States v. Alvarez, (Stolen Valor Act) - Concurring and Dissenting Opinions in Denial of Rehearing on En Banc
Azam Ahmed & Peter Lattman, NYTimes,Galleon Trial Focuses on Clearwire Deal With Intel ; Ashby Jones, WSJ Blog, What, Precisely, is Inside Info? Legal Issue Arises in Raj Trial; Jenny Strasburg & Michael Rothfeld, WSJ, Prosecutors: Tapes Show Intel Deal Tips
March 21, 2011
In the News & Around the Blogosphere
Pat Bealle & Cynthia Roldan, The Palm Beach Post News, 13 arrested in massive public corruption case
Mike Scarcella, BLT Blog, DLA Piper Wants Judge To Quash Subpoena in Clemens Case
E. Scott Reckard, Washington Post-Bloomberg, Criminal probe dropped against Countrywide CEO Angelo Mozilo (w/ a hat tip to Ivan Dominguez)
Sue Reisinger, Corporate Counsel, New Docs in Case of Ex-Glaxo In-House Counsel Lauren Stevens Reveal Other Lawyers' Roles (w/ a hat tip to Ivan Dominguez)
Ashby Jones, WSJ Blog, In Raj Trial, Prosecutors Go Back to the Tapes
Lance Williams, California Watch, SFGate, Barry Bonds trial: Expect a 'heavyweight' fight (w/ a hat tip to Ivan Dominguez)
March 20, 2011
Overcriminalization 101: The Dodd-Frank Act as Case Study (Heritage Foundation, NACDL, Texas Public Policy) - Speakers are Andrew Wise (Miller & Chevalier) & Brian Walsh (Heritage Foundation) - Thursday, March 24, 2011, 12:00-1:30 p.m., Capitol Visitor Center, HVC-201 Please RSVP to Landon.Zinda@heritage.org or (202) 608-6205 by Wednesday, March 23, 2011.
ABA Section of Litigation and Criminal Justice, April 13-15, Miami Beach, Florida here
20th Annual National Seminar on Federal Sentencing Guidelines, May 4-6, Orlando, Florida here
American Bar Association Criminal Justice Section Presents, A Town Hall Meeting on the State of White Collar Crime, April 15, 4:00 PM to 5:30 PM - Reception - 5:30 PM – 7:00 PM
Gansevoort Miami Beach 2377 COLLINS AVENUE, MIAMI BEACH, FL here