Sunday, March 31, 2013
Maurice E. Stucke (University of Tennessee) authored an article titled, "Should Competition Policy Promote Happiness?" The SSRN abstract states:
What, if anything, are the implications of the happiness economics literature on competition policy? This Paper first examines whether competition policy should promote (or at least not impede) citizens’ opportunities to increase well-being. The Paper next surveys the happiness literature on five key issues: (i) What constitutes well-being; (ii) How do you measure well-being; (iii) What increases well-being; (iv) Do people want to be happy; and (v) Can and should the government promote total well-being? Although the happiness literature does not provide an analytical framework for analyzing routine antitrust issues, this does not mean that competition officials should discount or ignore the literature altogether.
The findings of the happiness literature, as this Paper argues, offer some helpful insights on the current debate over competition policy's goals. The literature suggests that competition policy in a post-industrial wealthy country would get more bang (in terms of increased well-being) in promoting economic, social and democratic values, rather than simply promoting a narrowly-defined consumer welfare objective.
Friday, March 29, 2013
Two news items today highlight that the white collar area continues to be a key component of the criminal justice system. In Atlanta we see a Fulton County Grand Jury issuing indictments for claims that an alleged test cheating scandal involves criminal activity. See Michael Winerip, NYTimes, Former Atlanta Schools Chief Is Charged in Testing Scandal.
And the headline of the Tampa Bay Times is FBI Raid Signals End of Universal - an article describing the FBI raid of Universal Health Care.
Thursday, March 28, 2013
Wes Reber Porter, law.com (The Recorder), Viewpoint: Sentencing Guidelines Needn't Be Scrapped
Amanda Bronstad, NLJ, Ex-Nixon Peabody partner's co-defendant draws 10-year sentence in Ponzi scheme
Mark Niesse & Bill Rankin, Atlanta Jrl Constitution, Charges expected in APS test-cheating scandal
Monday, March 25, 2013
Last week, in celebration of the 50th anniversary of the Gideon decision, some of the nation's leading legal figures lauded the outstanding contributions made by the public defense bar. Public defenders indeed do deserve plaudits for their dedication and hard work in representing the poor and often despised. Most public defenders are devoted, diligent, relatively poorly paid, and work in difficult situation and under difficult conditions.
To me, however, the unsung heroes of the defense bar are those private lawyers who ably and diligently represent persons of modest income who are not poor enough to be provided free counsel by the state, but poor enough not to be able to pay substantial legal fees. Those lawyers, like public defenders, work in difficult situations and under difficult conditions. They often have no steady income, no employer-provided retirement or health benefits and sometimes no office. They do not have readily available ancillary services, such as advisory counsel, investigators, social workers and mitigation specialists. Often, they have to perform those functions themselves.
As insubstantial as the resources for public defense are, the resources available to many private lawyers -- whatever meager savings the client is willing to part with, whatever portion of the client's paycheck he has left over after paying for shelter and food and other expenses -- are often less.
This bar, to be sure, is an uneven one. Unlike public defenders, almost all of whom have at least a modicum of competence and expertise and devotion, some in the private bar are part-time or occasional criminal defense lawyers with little criminal experience and little dedication to the representation of their clients. Many, however, are able, experienced, energetic and devoted, despite being paid a fraction of what they deserve. Those unsung lawyers deserve credit and recognition.
Sunday, March 24, 2013
Daniel Sokol (UF & Minn) has a new piece titled, Policing the Firm. SSRN states:
Criminal price fixing cartels are a serious problem for consumers. Cartels are hard to both find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrong-doing. Thus far, antitrust scholarship and policy have ignored this insight. This article suggests how to improve antitrust enforcement by focusing its efforts on changing the incentives of internal firm compliance.
Friday, March 22, 2013
Nate Raymond, Reuters, Raj Rajaratnam brother charged with insider trading
PerkinsCoie, Perils of the Global Supply Chain Series, Part 3: Groundbreaking 'Honey Laundering' Sting Signals New Era in Supply Chain Enforcement (contributing authors, T. Markus Funk, Jean-Jacques Cabou, Michael A. Sink, Elizabeth M. Banzhoff, & Elizabeth Breakstone)
David Gialanella, New Jersey Law Jrl, Former Prosecutor Convicted of Witness Murder,
DOJ Press Release, Texas Man Convicted in Corporate Hacking Case
Jeff Blumenthal, Philadelpahia Business Jrl, Two Ex-Prosecutors Join Pepper Hamilton
Monday, March 18, 2013
Today marks the 50th anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, a case that promises the accused charged with a crime the right to counsel. Throughout the country many are recognizing the importance of this historic day with articles that tell the Gideon story. (see, e.g., here). One sees a Supreme Court Justice (Kagan) and Attorney General (Holder) recognizing the importance of the right to counsel. (see here)
But what about the white collar case?
White collar cases can be intricate, involve numerous documents, and can entail a sophistication of understanding financial records, something that one may not find in the routine street crime case. So when Justice Kagan says that you aren't entitled to a Cadillac defense, just a "Ford Taurus" defense, will that be enough in a white collar case?
Many white collar defendants will have funds sufficient to pay their lawyers, and in these cases it may be a non-issue. But for those who do not -- Are public defender offices being given adequate funding and resources to handle the lengthy document intensive cases associated with a white collar prosecution? It is difficult to defend these cases with a broken down bicycle that has no wheels.
Sunday, March 17, 2013
Peter Lattman, NYTimes, SAC Capital to Pay $616 Million in Insider Trading Cases
Paul Kish, Federal Criminal Lawyer Blog, Divided Atlanta Federal Appeals Court Upholds Florida Mail Fraud and Bribery Conviction: the Latest Saga in the "Honest Services" Debate
Mary M. Chapman, NYTimes, Former Mayor of Detroit Guilty in Corruption Case
Adam Nossiter, NYTimes, U.S. Embassy Criticizes Pardons in Nigerian Corruption Cases
Nate Raymond, Thomson Reuters, Rakoff says sentencing guidelines should be 'scrapped'
Robert W. Wood, Forbes, Ernst & Young's $123M Non-Prosecution Agreement Over Tax Shelters: Priceless
Michael Pollick, The Herald Tribune, Danish lawyer charged in Morgans' Ponzi scheme
Deon Daugherty, Houston Business Journal, Judge accepts Transocean’s $400M criminal settlement
Thursday, March 7, 2013
Attorney General Eric Holder yesterday defended the Department of Justice's treatment of Aaron Swartz, the 26 year-old internet activist who committed suicide three months before his scheduled trial in federal court in Boston. Specifically, Holder, in response to questioning by Sen. John Cornyn, a Texas Republican, defended the prosecution by citing the plea offer, stating, "There was never an intention for him to go to jail for longer than a 3-, 4- potentially 5-month range . . . . Those, those offers were rejected."
Holder's response troubles me in at least two regards. First is his implicit belief that a five-month jail sentence for Swartz was lenient. Swartz' alleged crimes were clearly based on a heartfelt belief that the public was entitled to free access to knowledge, specifically to academic journals. He would receive no personal benefit for his actions. Perhaps in these days, where sentences of years in double digits are commonplace, a sentence of five months seems to Holder like a trip to Disneyland, but five months in jail for a fragile young man acting out of humanistic belief and causing only comparatively light physical damage does not seem lenient to me. Apparently, Swartz did not see it as light.
Second is Holder's further implicit assumption that government decency is satisfied by a reasonable plea offer and available only to those who plead guilty. Swartz was indicted originally for crimes theoretically punishable by up to 35 years in prison. Later, a superseding indictment which ratcheted the potential sentence up to 50 years was filed. Had Swartz exercised his constitutional right to go to trial and been convicted, I would have been shocked if the government would have sought a sentence of five months or less. Rather, it undoubtedly would have sought a long sentence, most likely in the sentencing guideline range of approximately seven years.
I do not condemn the government for prosecuting Swartz. Perhaps prosecuting him was cruel, but prosecutions are often cruel to defendants. Despite his noble intentions, Swartz arguably violated the law, and I do not believe a victim should control the decision to prosecute, one way or the other. I do not, however, believe that Swartz' purported crimes deserved the full-blown zealous prosecution they received. A prosecutor in the appropriate case should charge less than the most serious crimes available and not always exercise her power to the "full extent of the law." Prosecutorial decency, or prosecution discretion, should not be confined only to plea offers.
Tuesday, March 5, 2013
One of the several troubling aspects of the continuing overcriminalization of federal law is the frequent elevation of a violation of civil regulation to a crime. In United States v. Izurieta, 11th Cir., 11-13585 (February 22, 2013), the Eleventh Circuit addressed this issue.
The defendants in Izurieta were convicted after trial by jury of violating the general smuggling statute, 18 U.S.C. 545, importing goods "contrary to law," by violating a customs regulation, 19 C.F.R. 142.113(c), in failing to redeliver to Customs for exportation or destruction goods purportedly contaminated with E. coli, Staphylococcus aureus and/or Salmonella which had been conditionally released.
The defendants appealed on various grounds -- significantly not including whether the indictment sufficiently charged a crime by relying on the Customs regulation. At oral argument, however, the Court raised this issue sua sponte and ordered supplemental briefing.
Section 545, as pertinent here, reads:
Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law . . . shall be fined . . . or imprisoned . . . .
The regulation or "law" upon the charges here were based covered the "failure to deliver, export, and destroy with FDA supervision" certain foods found to be adulterated. 19 C.F.R. 141.113(c).
The Court in its opinion recognized a split among circuits on when a regulation constitutes the "law" upon which a Section 545 indictment may be based. The Ninth Circuit in United States v. Alghazouli, 517 F.3d 1179, 1187 (9th Cir. 2008) took what the opinion called "a relatively narrow interpretation" of Section 545 that regulations are included in "law" only when "there is a statute (a 'law') that specifies that violation of that regulation is a crime." The Fourth Circuit in United States v. Mitchell, 39 F.3d 465, 470 (4th Cir. 1994), to the contrary, took what the opinion called a "more expansive" view, deciding that Section 545 criminalizes violations of any regulation "having the force and effect of law" based on a three-prong test.
The Court, while claiming its binding authority, Bobb v. United States, 252 F.2d 702, 707 (5th Cir. 1958) was consistent with the Fourth Circuit's "expansive" approach in Mitchell, applied the rule of lenity and held that the regulation in question did not qualify as a "law" for purposes of Section 545 liability. It found that the regulation in question was primarily to reflect contractual requirements between Customs and the importer and thus was "civil only."
The rule of lenity was premised, it said, on two ideas: first, that "a fair warning should be given . . . of what the law intends to do if a certain line is passed" and, second, that "legislators and not courts should define criminal activity."
This apparent case-by-case approach, of course, does not establish a "bright line" as to when violations of an administrative regulation become a crime. Citizens and attorneys will often have to guess whether a violation of a regulation is a crime; that is, "what the law intends to do if a certain line is passed." The case may, however, curb the government's increasing efforts to convert violations of ostensible civil regulations into crimes.
This case should remind lawyers that the uncertainties in this area require that they pay attention at both the trial and appellate levels to the issue of whether a violation of an administrative regulation is a crime.
(A hat tip to Paul Kish and the Federal Criminal Lawyer Blog)