November 12, 2011
NACDL White Collar Criminal Defense College at Stetson
The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.
More Information and to registrar here
Faculty (which includes 6 past-presidents of NACDL) here.
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707
Tradewinds Island Grand Beach Resort
5500 Gulf Boulevard
St. Pete Beach, FL 33706
November 9, 2011
Becker Will Not Be Prosecuted
The Justice Department has decided -- properly, I believe -- not to file criminal charges against former SEC general counsel David M. Becker for participating in SEC policymaking relating to the distribution of funds from the Madoff estate when he had a personal stake in the outcome, a matter we discussed over five weeks ago. See here. Although I believe Becker's failure to recuse himself on his own was an exercise in poor judgment, he did report the potential conflict to his ethics officer, who approved his participation, and SEC chairwoman Mary L. Schapiro, who apparently failed to question it. Hopefully, the SEC will not forget that errors in judgment should rarely, if ever, be actionable.
In the News & Around the Blogosphere
Dina ElBoghdady, Washington Post, $3 billion settlement expected in GlaxoSmithKline drug-marketing probe (hat tip to Tiffany Joslyn)
Peter Lattman, Dealbook,NYTimes, Raj Rajaratnam Assigned to Massachusetts Prison
Jane Crosby, Star Tribune, UnitedHealth hires top white-collar crime fighter
Branden Goyette, ProPublica, Cheat Sheet: What’s Happened to the Big Players in the Financial Crisis
Anthony J. Franze & R. Stanton Jones, Bloomberg, Silencing a Watchdog: Government Seeks to Muzzle Amicus in John Edwards Prosecution
US Attorney's Office District of New Jersey, LUCCHESE ORGANIZED CRIME FAMILY MEMBER AND ASSOCIATE AMONG 13 ARRESTED, CHARGED FOR RACKETEERING AND OTHER OFFENSES, INCLUDING ILLEGAL TAKEOVER OF PUBLICLY TRADED COMPANY - Attorneys and Accountant Also Charged as Members of Racketeering Enterprise
November 8, 2011
Pennsylvania Attorney General Linda Kelly held a press conference yesterday concerning the sexual assault, perjury, and failure to report charges levied against current and former Penn State officials, including one-time Defensive Coordinator Jerry Sandusky. CBSNews.com has the story here.
Attorney General Kelly stood at a podium. In back of her were giant posters, which showed enlarged photographs of the defendants and summarized the allegations against them.
Kelly had at least this much to say about an alleged 2002 sexual assault by Sandusky on a 10 year-old boy in a Penn State shower: "Those officials and administrators to whom it was reported did not report that incident to law enforcement or to any child protective agency. And their inaction likely allowed a child predator to continue to victimize children for many, many years." Of course, "those officials and administrators" include the two defendants facing charges of perjury and failure to report.
State Police Commissioner Frank Noonan, formerly chief investigator for the AG's Office, added his two cents. According to Noonan, defendant Jerry Sandusky's actions constituted "grooming, where these predators identify a child, [and] become mentors. They're usually children that they're having a little difficulty, they're at-risk children. Through the program he was able to identify these children, give them gifts, establish a trust, initiate physical contact which eventually leads to sexual contact, and that is very common in these types of investigations."
Noonan emphasized that Sandusky made admissions during a 1998 Penn State police investigation, "and nothing happened, and nothing stopped."
Noonan stated that subsequent incidents were ignored and/or not reported to the police. "And that's very unusual. I don't think I've ever been associated with a case where that type of eyewitness identification of sex acts [was] taking place where the police weren't called."
According to Rule 3.8 of the Pennsylvania Rules of Professional Conduct, the prosecutor in a criminal case "shall, except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule."
Rule 3.6(a) prohibits a "lawyer who is participating or has participated in the investigation or litigation of a matter" from making "an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."
Note 5 to the Comment on Rule 3.6 cautions that "certain subjects...are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to...a criminal matter, or any other proceeding that could result in incarceration." Those subjects relate to, among other things, "the existence of a confession, admission, or statement given by a defendant or suspect."
Why do so many prominent state and federal prosecutors appear to believe that they are immune from the obligation to follow such ethical rules?
Honest Services and Section 666 Includes Fraud Committed by a Foreign Worker
Second Circuit - United States v. Bahel - Honest Services - Post-Skilling, courts have struggled with what gets included as bribery and kickbacks and what gets omitted from the new contours of honest services. In Bahel, the defendant was convicted of four counts of mail and wire fraud premised on a deprivation of the United Nations, his former employer, and a 666 violation and conspiracy. Issues of immunity were considered, but the court said that the "United Nations expressly waived Bahel's immunity" and that irrespective he waived the issue. The court held that "Section 1346 is broad enough to encompass honest services fraud committed by a foreign worker at the United Nations."
Bahel also argued "that ‘[n]o reading of [18 U.S.C. § 666] could plausibly be extended to the charges in this case,’ because ‘[t]he United States’ membership in the United Nations is not a "federal program" under [Section] 666(b), and the contributions made to the United Nations under the United States treaty obligation in the U.N. Convention and Charter is not a "benefit" or "form of Federal assistance" under that same sub-section.’ Bahel argues accordingly that Section 666 cannot reach the conduct at issue in this case." The court, however, held that "the United Nations Participation Act, which authorizes the payment of the United States' dues to the United Nations (UN), is both a "federal program" and a "benefit" within the meaning of section 666, which encompasses bribes as well as illegal gratuities."