January 21, 2011
25th ABA Annual National Institute of White Collar Crime - San Diego, California, March 2-4 here
20th Annual National Seminar on the Federal Sentencing Guidelines, Orlando, Florida, May 4-6 here
ABA 2011 CJS Midyear Meeting - will be held February 11-12, 2011 in Atlanta, GA - here
Friday, February 11, 2011, 4:00 p.m. – 5:30 p.m. - M202, Marquis Level
Cosponsored by Section of Antitrust Law, and in recent years, the Antitrust Division of DOJ has made wide use of statutes in addition to the Sherman Act to enforce its mission of protecting competition. This program will discuss how the Division has utilized the fraud statutes, the FCPA, and obstruction statutes in recent prosecutions. To register, email firstname.lastname@example.org. Please be sure and include the name or number of the session(s) you will attend.
Securities Docket, January 24, 2011 - 1 p.m. - webcast - Global Anti-Corruption Enf. & Compliance – 2010 Year in Review -Channel: Securities Litigation and Enforcement Channel
Illinois Association of Criminal Defense Lawyers - Harrah's Casino, Joliet, Ill., Friday, Feb. 11, 2011 here
January 20, 2011
In the News & Around the Blogosphere
DOJ Press Release, Manhattan U.S. Attorney Announces Guilty Plea of Danielle Chiesi to Insider Trading Charges; Victor Li, Am Law Daily, law.com, Galleon Defendant Chiesi Pleads Guilty to Fraud Counts; Peter Lattman, Chiesi Pleads Guilty in Galleon Insider Case; Dominic Rushe, Guardian, Former Bear Stearns trader pleads guilty in insider trading case
David Bario, NLJ, law.com, Three legal advocacy groups file amicus briefs supporting Rubashkin
Florida AG Press Release, Attorney General Pam Bondi Announces Selection of Economic Crimes Director
Karin Matussek, Bloomberg, First Ex-Siemens Executive to Stand Trial in Munich in Corruption Scandal
Siegelman & Scrushy - Post Skilling - Is 1346 Really Necessary?
The Skilling case proved consequential in the discussion before the the Eleventh Circuit in the Siegelman and Scrushy cases. Check out this story on the oral argument -
John Schwartz, NYTimes, Judges Take Another Look at Ex-Alabama Governor’s Conviction
Some may claim that it is cases like this that should influence Congress to re-examine section 1346. Perhaps - but only to void the entire statute as recommended by Justice Scalia. One lesson that should be learned from both the McNally case, and now Skilling is that if the government is criminalizing conduct, it is necessary to require strict legal lines and those lines should not cross into legitimate conduct. 1346 should be voided because it is unnecessary. The basic mail fraud statute, 1341, and wire fraud, 1343, as well as the other fraud statutes, criminalize deprivations of "money or property." The Supreme Court has clearly held that "money or property" includes intangible property (Cleveland). To include "intangible rights" is therefore unnecessary for the prosecution of criminal misconduct. If the self-dealing does not involve money or property, should we really waste government resources on the prosecution?
Scholarship - Insider Trading
Oxford University Press recently published William K.S. Wang & Marc I. Steinberg “Insider Trading” (3d ed. 2010). An abstract can be found on SSRN here.
January 19, 2011
Professional Misconduct Review Unit
Attorney General Eric Holder announced a new Professional Misconduct Review Unit (see press release) that will "handle disciplinary actions for career attorneys at the Department of Justice that arise from Office of Professional Responsibility (OPR) investigations." The new chief of this unit is Kevin Ohlson. The press release states that "[t]he Professional Misconduct Review Unit (PMRU) will be responsible for all disciplinary and state bar referral actions relating to OPR findings of professional misconduct against career attorneys."
When a criminal defense attorney commits "intentional or reckless" professional misconduct, they can find themselves the subject of a bar disciplinary action. When a US Attorney or his or her assistant engages in such conduct, what happens? They are subject to the disciplinary rules, but there are few cases of prosecutor discipline. One has to wonder if this new review unit is an attempt to make sure that there are fewer disciplinary actions.
See also Mike Scarcella, BLT Blog, DOJ Creates Professional Misconduct Review Unit
January 18, 2011
What is Bribery in a Post-Skilling World?
The Paul Minor case (see here) may flesh out some of the questions left unresolved by the Court ruling inSkilling. Across the country we are seeing cases being reexamined to determine whether the conduct, indictment, jury instructions, and trial focused on "bribery or kickbacks" - the one permissible activity for "honest services" in the fraud statute - 18 USC 1346. In this regard, in the Paul Minor case we see several interesting issues - 1) Does the Mississippi bribery law meet the Skilling Court's test of "a uniform national standard,"; and 2) How should a court factor in that the prosecution used "concealment" and "self-dealing" in the indictment and closing argument as opposed to terms that would represent bribery. The high powered lineup to present these issues are: Ted Olson and David Debold of Gibson, Dunn & Crutcher.
Motion to Vacate Convictions -Download Motion to Vacate
Memo in Support of Motion to Vacate Convictions-Download Motion to Vacate - Memo
Government Response - Download 46738335-US-Response-to-Paul-Minor-s-lastest-motion-to-dismiss-010711
January 17, 2011
Aggressive Environmental Crime Enforcement Expected for 2011
The Obama Administration was expected to increase environmental crime enforcement as part of its overall commitment to environmental justice. For the first two years, the record has been mixed and the expected increase against corporate defendants never materialized. That may soon change.
FY 2010 saw an increase in the number of individuals, as opposed to corporations, charged with environmental crimes, from 74 percent in FY 2009 to 76 percent in 2010. Criminal charges were brought against 289 defendants during FY 2010 and, of those 289 defendants, 251(87 percent) included charges against individual criminal defendants. These enforcement results are consistent with the EPA/DOJ’s renewed emphasis on maximizing the deterrent effect of its prosecutions.
In 2010, the number of criminal prosecutions against companies declined, but the number of individual prosecutions increased in the last year. Additionally, both individual and corporate criminal defendants can expect stiffer penalties for environmental crimes, in keeping with the EPA’s mission to achieve maximum deterrence.
The EPA’s Strategic Plan outlines a planned 20 percent increase in criminal prosecutions against individuals and corporations. The increased focus on criminal prosecutions reflects a decision by the EPA to increase criminal cases involving waste dumping and other statutory violations where significant harm to the environment or death or serious injury do not occur. In addition, electronic reporting will become a new area ripe for criminal enforcement, as the EPA shifts away from paper records and moves toward requiring regulated entities to certify compliance via e-filing.
In any year, there are only a handful of environmental crime incidents involving death or serious bodily injury. While the agency will certainly investigate and prosecute those serious, the new effort is aimed at increasing the less glamorous environmental crimes – i.e. false reporting or illegal storage or disposal of waste that may not cause serious environmental harm.
In order to carry the increased caseload, the EPA has increased its staff of criminal investigators – 25 new agents are scheduled to start in the beginning of the year, bringing the total staff to over 200 criminal investigators, and another 25 new agents are scheduled to begin in May 2011. During the early 2000s, EPA cut its number of agents to well below 200 in violation of the 1990 Pollution Prosecution Act—following which the agency embarked upon a three-year hiring strategy to restore EPA CID to present numbers.
Corporate compliance officers would be well informed to review their company’s environmental compliance programs, increase compliance efforts, and allocate additional resources to prevent any possible criminal investigation.
Speech and Debate Clause Hampers DOJ
Boo hoo. The Washington Post has a good article here, by Jerry Markon and R. Jeffrey Smith, about the Constitution's Speech and Debate Clause, and the various ways in which it is hampering DOJ corruption probes. Unfortunately, the article implies that certain high-profile cases were dropped primarily or solely because of Speech and Debate. This unfairly maligns the named lawmakers and/or former lawmakers in question, and makes it seem that they were let off on a technicality. That damned technical Constitution--always getting in DOJ's way. In fact, the very idea that DOJ wiretapping of House members was, until recently, considered a legitimate and entirely appropriate law enforcement tool is a testament to how out of whack the balance of powers between the Legislative and Executive Branches has become. Congress finally woke up and smelled the coffee and, with an assist from the DC Circuit in U.S. v. Rayburn House Office Building, is resisting Exective Branch encroachment on its institutional powers.
January 16, 2011
In the News & Around the Blogosphere
Sue Reisinger, Corporate Counsel, law.com, Corporate Compliance and Criminal Cases: Plan Now or Pay Later
Kaye Scholer LLP's White Collar Litigation & Internal Investigations Client Alert - Telecommunications Industry Giant Agrees to $132 Million Combined Settlement in FCPA Cases
Rami Grunbaum, Seattle Times, Financial empire, luxurious lifestyle were built on a mirage