August 25, 2011
Third Circuit Allows Judicial Immunity Grant for Defense Witness
There are certain imbalances in the trial of a criminal case. Some favor the defense – most obviously, that the prosecution must prove guilt beyond a reasonable doubt, not merely by a preponderance of the evidence. Some favor the prosecution – such as the ability to force witnesses to testify by grant of immunity, an ability the defense does not have.
Essentially, the prosecution may require testimony from any available witness if the testimony is relevant and admissible and not protected by constitutional or evidentiary privilege. If a witness refuses to testify on fifth amendment grounds, the prosecution has the option of granting the witness immunity and thus eliminating, at least theoretically, her fear of self-incrimination and consequently her right not to testify. Prosecutors routinely in white-collar and other cases rely at trial on immunized testimony of accomplices, co-conspirators and others involved in the alleged criminal activity at issue.
The defense, on the other hand, is hampered by its inability to secure the testimony of such witnesses, who, fearful of prosecutorial use of their trial testimony against them in a later proceeding and/or retaliation for their testimony for the defendant, often assert their fifth amendment privilege against self-incrimination to avoid testifying. Although the defense may request that the prosecution, or the court, grant immunity to a defense witness, such requests are almost invariably denied. Prosecutors, generally not interested in helping the defendant, never or virtually never grant such requests, even if there is virtually no possibility that the witness will ever be prosecuted, commonly claiming that the witness might be immunized for other, unknown crimes. Judges routinely refuse to grant immunity out of fear of giving a potential wrongdoer immunity, deference to the prosecutor’s decision, or separation of powers concerns.
In re Nagle (3d Circuit, 10-3974, August 17, 2011), 2011 WL 3610120, a non-precedential opinion, involved such a situation. The underlying indictment charged Nagle and his uncle and business co-owner Fink with defrauding the United States by setting up a phony Disadvantaged Business Enterprise (DBE) to act as a subcontractor so that the business was eligible to, and did, receive government projects. Nagle claimed Fink had excluded him from the day-to-day operations of the business and that he was unaware of any fraud. After Fink pleaded guilty to conspiracy, Nagle subpoenaed him and Fink replied that he would invoke his fifth amendment right and decline to testify.
The defendant requested that the government grant the witness immunity. Not surprisingly, the government refused, contending it did not know what the witness would say and that it feared giving him an "immunity bath." Then, the district court, upon application of the defendant, itself granted Fink immunity.
The case reached the Third Circuit on the government’s interlocutory appeal and writs of mandamus and prohibition challenging the district court’s immunity grant to Fink. The Court of Appeals denied both the appeal and the writs on procedural grounds. While the court did not rule on the merits of the district court’s decision by holding it was not challengeable by either appeal or writ, it did say that the district court "neither committed clear legal error nor clearly abused its discretion," thereby putting its finger, but not its thumb, on the scale favoring the grant of immunity here.
Thirty-seven years ago, a federal judge, denying a motion I made for defense witness immunity, called it "the stupidest motion I ever heard." According to the knowledgeable Ardmore, PA attorney Peter Goldberger, who co-wrote the NACDL amicus appellate brief supporting Nagle, this case is the first Circuit Court decision upholding a grant of immunity. The law sometimes moves slowly.
To be sure, the court’s non-precedential decision is not a strong or unqualified approval of judicial grants of defense witness immunity. The court said only that the grant here was neither a clear error of law nor a clear abuse of discretion. Additionally, the district court’s order was made after the witness Fink had pleaded guilty (but apparently before he was sentenced) and thus the immunity grant did not absolve him of criminal liability, at least for the conduct to which he admitted guilt. Most requests for grants of defense witness immunity are for testimony of persons who have not been charged, let alone convicted. In those instances, the prosecutorial objection that immunity might let a criminal go free has more substance.
Defense lawyers should nonetheless celebrate -- albeit with beer, not champagne. The decision should give some support to district judges (at least in the Third Circuit) who are hesitant to grant defense immunity because of questions of judicial power or fear of reversal. And, it should suggest to prosecutors that they may no longer be able to continue to deprive defendants of essential testimony solely based on the boilerplate, unspecific argument that it might give the witness an "immunity bath" for unknown crimes.
Nagle Mandamus Petition -Download Nagle mandamus petition
Brief of Appelle/Respondent Joseph W. Nagle - Download 3BrNagle e032111
Rply Brief of Appellant/Petition - Download 3USReply e040611
NACDL-PACDL Amicus - Download 3MemAmi NACDL-PACDL e112410
August 24, 2011
DA’s Position in Strauss-Kahn Should Stir ABA
The New York County District Attorney’s Office, in moving to dismiss the case against Dominique Strauss-Kahn, attempted to seize the high ground. Rather than merely stating that it could not prove the defendant guilty beyond a reasonable doubt, as it invariably does in motions to dismiss and as its motion persuasively demonstrates, the prosecution justified its position on the grounds that it was ethically bound to dismiss the case because it was not convinced of the defendant’s guilt. "If, after a careful assessment of the facts, the prosecutor is not convinced the defendant is guilty beyond a reasonable doubt, he or she must decline to prosecute," said District Attorney Cyrus Vance Jr. That position, however laudable, is not the standard set forth by either the American Bar Association Standards on the Prosecution Function or the New York State Rules of Professional Conduct.
In its written motion, the prosecution contended (without citation to policy statements, ethics rule, case or statute), that its position reflected the policy of "felony prosecutors" in New York County "for generations." Defense practitioners, however, would dispute that, frequently having been told by prosecutors in New York County (and elsewhere) that it does not matter what the prosecutor personally believes, but rather "that’s what juries are for."
As I wrote in an earlier blog piece, here, the American Bar Association Standards for Discretion in the Charging Decision (Standard 3-3.9) do not preclude a district attorney from prosecuting a case in which he is not convinced of the defendant’s guilt, as long as the charges are supported by probable cause and admissible evidence. Similarly, the New York Rules of Professional Conduct only preclude a prosecutor from going forward if "the charge is not supported by probable cause." N.Y. Rules Prof’l Conduct R. 3(8)(a).
The District Attorney’s pronouncement, whether a new policy fashioned for the Strauss-Kahn case or a reiteration of past practice, is a commendable one. The ABA should reconsider its position allowing a prosecutor to go forward even if he or she does not believe the defendant is guilty.
Norris Amicus Brief Filed
The National Association of Criminal Defense Lawyers (NACDL) filed an amicus brief in the Ian Norris case - Download Norris v United States (11-91) Brief of NACDL as Amicus Curiae in Support of Petitioner_FINAL It highlights some of the important issues in this case. (for background see here). It brings out important issues such as:
- "[T]he Third Circuit's ruling renders effective representation of both the corporate and individual clients ensnared in a government investigation impossible, and encroaches on the rights embodied in the Sixth Amendment."
- "The decision endorses Government efforts to compel counsel to testify against their clients."
The Supreme Court raised in footnote 7 of Arthur Andersen LLP that there was a split in interpreting "corruptly persuades"in 18 USC 1512(b). The Court did not resolve this split in Andersen.
The NACDL brief places front and center the question of what should be the scope of the Bevill test. It also shows the ramifications of continuing with this test, a test that runs counter an important constitutional principle. Lower courts have been looking to the Third Circuit Bevill test, but it has yet to be endorsed in any Supreme Court opinion. Norris, presents this issue with an added dimension of a statute that has mixed interpretations.
Eleventh Circuit - Mortgage Fraud Judgment Vacated and Remanded for Re-Sentencing
In United Staets v. Singletary, the Eleventh Circuit looked at issues of loss amount in a mortgage fraud decision. The Federal Defender's Office for the Middle District of Florida (with special thanks to Steven Kruer, chief paralegal) writes:
"Anyone with a mortgage fraud case presenting issues of loss amount or restitution payable should read this published decision from Monday, August 15, 2001, in which the Eleventh Circuit vacated the judgment and remanded for re-sentencing.
"In reversing, the Court noted that the government had the burden of proving, with respect to each of the mortgages for which it sought restitution, that the mortgage was the product of a fraudulent misrepresentation, and that it had not met this burden. The district court’s statement in the restitution order that “restitution of at least $1,000,000 has been established by the Government” did not identify the mortgages that had been fraudulently obtained and caused losses totaling that sum. To enable meaningful appellate review, the Court wrote, a district court’s calculation of restitution must be supported by specific factual findings. The district court failed to carry out this task, the Court held, and thus vacated the restitution provisions of the Singletarys’ judgments and remanded the case so that the court could perform this task.
In remanding, the Court wrote:
We do so with this caveat: the Government is not receiving another bite of the apple. The district court shall render the necessary findings of fact and conclusions of law with respect to each of the 56 mortgages at issue on the basis of the evidentiary record as it now exists.
(esp)(reprinted with permission of the PD's Office MD Fl.)
August 22, 2011
Petition for Cert Filed by CEO Ian Norris
The Norris case provides an opportunity to consider the role of corporate counsel in dealing with a CEO, in addition to resolving a circuit split with the witness-tampering statute - 18 USC 1512(b). The defense raises the issue as to "whether a person 'corruptly persuades' another in violation of the statute by persuading him or her to decline to provide incriminating information to authorities, where the other person enjoys a privilege or right to so decline."
The underlying factual basis that sets the stage for this issue raises concerns that could use Supreme Court clarification. As noted here and here, the Third Circuit ruled that the district court "did not legally err in applying" the Bevill test. Deferring to the district court, the Third Circuit held that permitting the company's former counsel to testify at trial was not error as Norris had not met "his burden in asserting his privilege pursuant to the five-factor test set forth in Bevill. The 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."
Ian Norris, CEO of Morgan Crucible, originally faced three counts of obstruction of justice. He was acquitted of two counts following his extradition and trial in the United States, but was convicted of conspiracy to tamper with grand jury witnesses. A key witness against the defendant was corporate counsel. The trial court allowed corporate counsel to testify despite the defendant's argument that corporate counsel had represented Norris. Some of the evidence offered by the defense is included in the attachments to the cert petition. For example, the Antitrust Division explicitly asked counsel who he represented, saying "if your representation is limited to the corporation only, I would greatly appreciate your confirming that fact for me so that there are no misunderstandings as to the scope of your representation." (p. 181-82a). The exchange of letters has counsel telling the Antitrust Division that "[w]e presumptively also represent all current employees of the companies in connection with the matter." It also states - "[s]hould you wish to call other current employees, I assume that we would also represent those individuals." (p. 185a). Norris presents many other documents in the appendix to support his argument that corporate counsel represented him.
Norris Cert Petition - Download Norris Cert Petition (efile)
The government did not file a responsive brief and the Supreme Docket has the case distributed for a conference of September 26, 2011. See here.
See also Sue Reisinger, Corporate Counsel, Jailed CEO Ian Norris Appeals His Conviction to SCOTUS; D. Daniel Sokol, Antitrust & Competition Policy Blog, Norris Cert Petition to the Supreme Court
Eleventh Circuit Affirms Convictions in Grade Changing Scheme
For many, this week starts the first week of classes. So it seems appropriate to remind everyone that hi-tech grade changing schemes can land students with criminal convictions and prison time.
The Eleventh Circuit upheld the conviction and sentence of an undergraduate student at Florida A & M University (FAMU) who had received a sentence of 84 months and was appealing. (U.S. v. Barrington) This student, along with two co-defendants, "all undergraduate students at Florida A&M University ("FAMU"), were indicted and charged in a five count indictment with conspiracy to commit wire fraud using a protected computer in violation of 18 U.S.C. §§ 371 and 1349; fraud using a protected computer in violation of 18 U.S.C. §§1030(a)(4) and (c)(3)(A) and 2; and three counts of aggravated identity theft in violation of 18 U.S.C. §§ 1028A and 2." Two of the students "pleaded guilty pursuant to plea agreements, received substantial assistance departures pursuant to U.S.S.G. § 5K1.1, and were each sentenced to 22 months in prison and 3 year terms of supervised release."
In this case it started with using "blank grade change slips." But it then moved to installing "keylogger software on various University computers, including an office computer used by a Registrar employee and four terminals placed in the University's grand ballroom during registration." They captured the Registrar's usernames and passwords which allowed them access to the system so that they could change grades. They even went so far as to change "the residencies of several non-resident students to qualify them for in-state tuition." The court noted that an investigation "revealed that in excess of 650 unauthorized grade changes had been made, involving at least 90 students."
The 11th Circuit rejected the appealing defendant's legal error claims and also claims that the sentence was improper.
August 21, 2011
Post-Skilling Government Approach - Depends on the Case
In Skilling, the Court limited section 1346 to bribes and kickbacks. But this decision has left courts with several unresolved issues. The Stinn case raises an important issue, and the briefs highlight an interesting position being taken by the government.
The defense files a 2255 motion in Stinn saying that Skilling applies and the conviction should be vacated. - Download Omnibus Memo of Law ISO Stinn's Mtn to Vacate They note that "[i]t is immaterial that the government and the trial court did not use the phrase 'honest services' in the indictment or the jury instructions. The government argued the same invalid theory as it did in Skilling throughout the trial and relied on that theory to convince the jury to convict Stinn."
The government argues that Skilling does not apply because they did not file the case under 1346. Download Gov's Memo in Opp to D's Mtn to Vacate Convictions & Grant Bail They note "the Supreme Court's holding in Skilling is irrelevant to the defendant's case, as he was not prosecuted under an honest services theory of fraud."
The defense replies, however, with several arguments including - isn't this the exact opposite position the government took in the Redzic case. Download REPLY TO GOVT'S OPP TO MTN TO VACATE Redzic, an unusual case, had the court finding that the "money or property" portion of the case was problematic and could not stand. But even though the defendant was not charged under 1346, the court went on to uphold the conviction saying that 1346 did not "create a separate substantive offense, it merely defines a term contained in sections 1341 and 1343." The court held it was not necessary to cite 1346 in the charging instrument.
Redzic raised issues of whether the accused had truly been advised under due process of the charges against the defendant since the government was using an uncharged basis for asking that the conviction be upheld. But now the government in Stinn is saying that it makes a difference whether the government charges a case under 1346. Is the government taking the opposite position in these two cases (Redzic and Stinn), and is this problematic?
Last Call - Sept. 1 Deadline - Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration
Call for Roundtable Workshop Submissions: Reducing Reliance on Incarceration
On Oct. 27-28, 2011, the ABA and the AALS will present a joint conference, Reducing Reliance on Incarceration, at the Liaison Capitol Hill Hotel in Washington, D.C. The first event of the conference, on the afternoon of Thursday Oct. 27th, is a workshop for scholarly papers relating to the conference theme. Participants will present their work in a roundtable format. Abstracts or drafts will be shared among presenters and discussants in advance of the workshop. Workshop presenters must commit to attending both days of the conference, which will include a plenary and multiple break-out sessions on the topic of reducing reliance on incarceration. For a description of the program, please visit here Workshop presenters will be responsible for their own travel and hotel costs, and will be required to pay the conference registration fee. To apply to workshop a paper, please email an abstract of 500 words to both email@example.com and firstname.lastname@example.org by Sept. 1, 2011. Space is limited and presenters will be chosen by members of the organizing committee.