Thursday, December 29, 2011

2011 White Collar Crime Awards

Each year this blog has honored individuals and organizations for their work in the white collar crime arena by bestowing "The Collar" on those who deserve praise, scorn, acknowledgment, blessing, curse, or whatever else might be appropriate. I welcome comments from readers who would like to suggest additional categories or winners (or losers?).

With the appropriate fanfare, and without further ado,

The Collars for 2011:

The Collar for Best Waste of Time - To those trying to redraft honest services legislation that will comply with footnote 45 in the Skilling decision.

The Collar for Most Important Piece of Legislation Not Enacted this Year - New laws to assure discovery is provided by prosecutors to assure a fair judicial system. 

The Collar for the Hottest Potato -  The Unreleased Report on discovery violations in the Stevens case. 

The Collar for the Gun Used Most Often in Corporate Hold-ups - The Foreign Corrupt Practices Act.(two years in a row)

The Collar for the Least Likely to Survive - A FCPA case that goes to trial

The Collar for the Case Most Needing Review - Sholom Rubashkin's 27 year sentence. (two years in a row) 

The Collar for the Shame on You for Doing That - Prosecutors who asked for 24 years in the Raj Rajaratnam case

The Collar for Most Likely to Miss an Iceberg in Alaskan Waters -  AUSAs who fail to provide Brady material to defense counsel despite new rules issued by DOJ

The Collar for the Most Baffling Media Relations - tied this year between Blago and Sandusky

The Collar for Dereliction of Duty - to the Department of Justice for failing to seriously investigate the biggest financial meltdown since the Great Depression

The Collar for Recidivism - to the Department of Justice's Fraud Section for Lindsey Manufacturing

The Collar for the Best Moment of Silence - To the Solyndra execs who recognized the importance of the 5th amendment constitutional right

The Collar for the Best Effort to Prolong his 15 Minutes of Fame - Joseph Amendola, the attorney for Jerry Sandusky, who conducted a highly-criticized press campaign with his client

The Collar for the Wildest Pitch - To the prosecutors in the Roger Clemens case that put it into extra innings

The Collar for the Misplacement of Funds - Tied - legislators for failing to give the SEC more funding so that we can avoid future Ponzi schemes like Madoff, yet giving funds for environmental raids like the one against the Gibson Guitar factory here

The Collar for Most illegitimate Prosecution -  To the prosecutors who are proceeding against John Edwards

The Collar for Sentencing Sanity - To Hon. Ellen Huevelle for consistently rejecting DOJ's draconian sentencing recommendations 

The Collar for the Best Willful Blindness - To the DOJ for not filing a brief in the Global Tech case where the Supreme Court reformed criminal willful blindness law in a civil case -- you mean they really didn't know about this case

The Collar for the Lowest Box Office Hit -  The denial of Wesley Snipes Cert petition that went almost unnoticed in the media

The Collar for Most Qualified Judge for American Idol -  Tied- To Hon. Roger Titus for voting off the government's case in the Lauren Stevens case and Hon. Howard Matz for voting off Lindsey Manufacturing

The Collar for the Best Portrayal of Casablanca's Captain Reynaud - Jon Corzine, who was "stunned" to hear of apparent diversions at MF Global.

The Collar for the Best Parent - retired years ago and renamed the Bill Olis Best Parent Award - unawarded this year since no one comes even close to Bill Olis, may he rest in peace.

The Collar for Best Performance of "The Good Wife," old style - Anne Sinclair, Dominique Strauss-Kahn's wife, who supported him financially and publicly through it all.

The Collar for Best Effort to Support the Legal Profession - New York State Assemblyman William Boyland, who while under indictment for bribery allegedly sought an unrelated $250,000 bribe to pay his lawyer.

The Collar for Making a Mountain out of a Muffin -- The DOJ Inspector General for issuing a report criticizing the department for excessive charges for program meetings (and then backtracking on its findings).

The Collar for Declinations - to the Department of Justice for failing to indict anyone in the Robo-signing cases

(esp, Wisenberg, Goldman)

December 29, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 27, 2011

UK Bribery Act Decision Tree & Anti Bribery Chart

T. Markus Funk has two new extraordinary charts - a UK Bribery Act chart (Download FlowChart_UKBriberyAct_Draft7_Blue) and a chart that compares between the UK, US, German, Chinese, and India's anti-corruption laws (Download Anti Bribery Chart).  Thanks for sharing these.

(esp)

December 27, 2011 in FCPA | Permalink | Comments (1) | TrackBack (0)

New Cert Petition Filed in Skilling - Interesting Question

Jeffrey Skilling is trying for a second shot with the Supreme Court.  On November 28, 2011 he filed a cert petition with the Court (see here).  The questions presented are:

1. Whether Neder permits a court conducting a harmless-error analysis in the context of an "alternative theory" case to consider only the strength of the Government's case on the legally valid theory, without regard to whether the defendant contested that theory enough to create a factual dispute that rationally could have been resolved in the defendant's favor.

2. Whether a court conducting a harmless-error analysis in the context of an "alternative theory" case may categorically exclude the defendant's testimony in his own defense on the legally valid theory.

The government's response is due January 3, 2012.

(esp)

December 27, 2011 in Enron, Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

Monday, December 26, 2011

In Memoriam: Robert G. Morvillo (1938-2011)

Leading white collar practitioner Robert G. Morvillo passed away.  His firm notes here. The NYTimes has an article here.  Contributing blog editor Lawrence S. Goldman writes, "If I had ever been investigated by the U.S. Attorney for the Southern District of New York, I would have hired Bob Morvillo. In the current world, where many defense lawyers try to avoid getting into fights with prosecutors, Bob was a throwback. Although personally conservative on many criminal justice issues, Bob had no hesitancy in using his considerable skills and stature to challenge vigorously a prosecutor, both in the office hierarchy and in court, when he felt that his client was being treated unfairly. He was a brilliant, gutsy, no-nonsense lawyer. His death is a great loss to the white-collar defense bar."

(esp)

December 26, 2011 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Judge James B. Zagel: Out Of Order In Blagojevich Case Comments

    Hat tip to Scott Greenfield of Simple Justice for his outstanding post on Judge James B. Zagel's unfortunate public criticisms of one of Rod Blagojevich's criminal defense attorneys, Lauren Kaeseberg. Kaeseberg had the temerity to file a post-judgment Emergency Motion For Evidentiary Hearing Regarding Potential Juror Misconduct, based on news reports that the Blagojevich jury foreperson was publicly displaying her juror questionnaire, arguably in violation of a prior court order. Zagel denied the motion from the bench, calling it "harebrained," according to the Chicago Sun-Times' Abdon Pallasch. The Lake County News-Sun, picked up the "harebrained" comment and placed it in the headline of its story about the ruling. Above the Law  piled on with a frivolous post, and Kaeseberg has apparently been taking additional criticism on her web site. You can read the Emergency Motion above for yourself and draw your own conclusions. On its face, I see absolutely nothing wrong with it. 

    Judge Zagel also hit Kaeseberg, sworn in as an attorney in 2008, with the following zingers:

        "The motion was prepared without any adequate thought." It looks thoughtful enough to me. Sometimes criminal defense attorneys, particularly in the post-sentencing, pre-notice of appeal context, have to move swiftly in order to obtain a fact-finding hearing, make a record, and/or preserve error.

        "[The filing was] beyond my imagination." That's not exactly the legal standard.

        "You should seek outside counsel...and send a letter of apology to the juror." Why? The Emergency Motion was temperate in its discussion of the foreperson, who "has made many public appearances since the verdict...touting her decision and role in the Blagojevich jury."

         "By the absence of precedent, I assume you couldn't find precedent." As Greenfield correctly points out, lawyers don't always have on-all-fours (or, as they say in Chicago, "white horse") precedent at hand. The dedicated, imaginative lawyer works with principles and analogous cases and tries to make new precedent. It's called lawyering.

    Pallach also reports Judge Zagel saying that he "could hold Kaeseberg in contempt of court but was cutting her slack because she was a fairly new lawyer." On its face, the motion does not seem to be improper at all, much less contemptuous. Perhaps there is some backstory here that we are not aware of. The press seldom reports everything. But this is a serious public allegation for a federal judge to throw at a young lawyer, particularly given the unexceptionable nature of the Emergency Motion. 

    Ms. Kaeseberg defended her motion in the press. She stands by it. She is proud of it. Good for her. She has guts. She should wear Judge Zagel's criticisms as a badge of honor.

(wisenberg)       

December 26, 2011 in Judicial Opinions, Prosecutions | Permalink | Comments (1) | TrackBack (0)

Sunday, December 25, 2011

Professor Larry Ribstein Will Be Missed

The passing of Professor Larry Ribstein is being noted on many blogs (see here, here, here, and here)(See also University of Illinois College of Law notice here).  As it should be.  He was an extraordinary scholar and a welcomed and strong member of the academic blogosphere. His Ideoblog housed some of the best entries on overcriminalization and the injustices of sentencing in white collar cases. He was the master at analyzing and speaking about agency costs in the white collar arena. I had the pleasure of being a co-organizer of the Overcriminalization 2.0 Symposium that was presented and published by George Mason's Journal of Law, Economics & Policy, along with the National Association of Criminal Defense Lawyers, where Larry presented an incredible paper. Larry was never afraid to speak up against injustices, even when it was unpopular to do so.  He will be missed - RIP, Larry.

(esp) 

December 25, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)

Happy Holidays

Wishing everyone a happy, healthy, and peaceful holiday. 

(esp)

December 25, 2011 in About This Blog | Permalink | Comments (0) | TrackBack (0)