June 21, 2012
Southern Union Co. - Apprendi Applies to Fines - But Will it Matter?
The Supreme Court issued an opinion in Southern Union Co. v. United States. The company was convicted of a RCRA violation, which carries a penalty of a fine of not more than $50,000 for each day that there is a violation. Justice Sotomayor, writing the opinion for the Court, considered whether juries need to decide the fine given, in order to comply with the Court's prior decisions in Apprendi and Blakely that "reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence."
The Court held that "where a fine is so insubstantial that the underlying offense is considered 'petty' the Sixth Amendment right of jury trial is not triggered and no Apprendi issue arises." But the Court then went on to say that "not all fines are insubstantial, and not all offenses punishable by fines are petty." The final ruling was that "Apprendi applies to the imposition of criminal fines." And it applied here.
A dissent by Justice Breyer, that was joined by Justices Kennedy and Alito, argued that "the Sixth Amendment permits a sentencing judge to determine sentencing facts - facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose." They believed that the Court's position would "lead to increased problems of unfairness in the administration of our criminal justice system." They discuss the existing high rate of plea agreements in the case.
The real question here is whether this decision will matter. As noted by the dissent, 97% of federal convictions result from guilty plea. But what went unnoticed is that very few companies - the object of many fines - go to trial. Often these cases are resolved with non-prosecution and deferred prosecution agreements. So will it really make any difference that juries can determine these fines, when the corporation in a post Arthur Andersen LLP world will seldom be going to trial.
June 20, 2012
Politics and Justice
AG Holder has issued a statement in response to the House Panel Vote (on party lines) to recommend holding him in contempt for not providing items to the committee -
In his statement, Holder states-
“In recent months, the Justice Department has made unprecedented accommodations to respond to information requests by Chairman Issa about misguided law enforcement tactics that began in the previous administration and allowed illegal guns to be taken into Mexico. Department professionals have spent countless hours compiling and providing thousands of documents -- nearly 8,000 -- to Chairman Issa and his committee. My staff has had numerous meetings with congressional staff to try and accommodate these requests and yesterday, I met with Chairman Issa to offer additional internal Department documents and information that would satisfy what he identified as the Committee’s single outstanding question." (more here)
The Cost of a White Collar Case
The financial cost of a white collar case can be a huge deterrent in itself. But often, the corporation or company where the individual is employed will be footing the bill. Check out - Peter Lattman, N.Y.Times, Goldman Stuck With a Defense Tab, and Awaiting a Payback
(esp)(w/ a hat tip to Professor Jerold Israel)
Call For Nominations For the 2013 White Collar Criminal Defense Award
CALL FOR NOMINATIONS FOR THE 2013
WHITE COLLAR CRIMINAL DEFENSE AWARD
The NACDL White Collar Criminal Defense College at Stetson University College of Law is an intensive “boot-camp” style program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. In conjunction with this event, the Advisory Board of the White Collar Criminal Defense College announces a call for nominations for its Annual White Collar Criminal Defense Award. The following criteria have been established for the award:
- Nominees shall have distinguished him or herself in the white
collar defense bar;
- Length of service to the white collar bar and sustained excellence
will be considered;
- Nominees should have enjoyed a recent success in a trial or other
major result involving a white collar matter;
- Membership in NACDL is not required but is encouraged and
will be considered; and
- Nominees may be self-nominated or nominated by others.
All nominations should be submitted to both Daniel Weir at email@example.com and Ellen S. Podgor at firstname.lastname@example.org . The deadline for submissions is July 15, 2012. Information about the NACDL White Collar Criminal Defense College at Stetson, including an agenda, list of faculty, and registration form will be available soon at www.nacdl.org.
June 19, 2012
Reactions to Gupta Verdict
The jury deserves credit - they clearly evaluated all the counts as evidenced by their finding of guilt in some and not guilty in others. The judge deserves credit - Hon. Jed Rakoff is a leading scholar and superb jurist.
But should this be a crime? And exactly what is the crime? Should individuals who obtain little or no personal profit be subject to criminal penalties?
And what evidence should a jury hear during the trial? Should wiretaps that are select conversations of the government be allowed to be used against a defendant in a securities fraud case, when this crime is not included in the criminal activity of our wiretap laws (see here)?
There is an interesting interplay here. On one hand we have someone being convicted for using "secret" information - the insider trading. On the other hand we have the government using "secret" information to convict the individual - the wiretaps. I keep wondering if there is anything that can be "secret" anymore. In this information age it seems like information is so accessible that it is difficult to claim anything as being "insider."
June 18, 2012
Government Strikes Out in Clemens - Ballgame Over
This nine week trial cost us how much? And what about the first mistrial, too (here)?
And while this was going on, how many cybercrimes and identity thefts have gone unnoticed. And when the investigation of this case was occurring, did we miss some Ponzi schemes and mortgage frauds?
We have limited resources - we need to use them wisely.