Friday, July 5, 2013
Noted here were the initial reports of alleged IRS targeting. The NYTimes tells the other side here. Perhaps this is a good time to appoint an independent non-political individual or entity to look into what really happened here, if anything.
Tuesday, July 2, 2013
Yesterday, in United States v. Goffer, an insider trading/securities fraud criminal appeal, the Second Circuit again refused to alter a standard conscious avoidance jury instruction to comport more fully with the Supreme Court's opinion in Global-Tech Appliances, Inc. v. SEB S.A., 131 S.Ct. 2060, 2068-72 (2011). According to Judge Wesley, Global-Tech was not "designed to alter the substantive law. Global-Tech simply describes existing case law." The instruction given by the trial court "properly imposed the two requirements imposed by the Global-Tech decision." Moreover, Appellant Kimelman's request "that the district court insert the word 'reckless' into a list of mental states that were insufficient" was unnecessary, because "Global-Tech makes clear that instructions (such as those in this case) that require a defendant to take 'deliberate actions to avoid confirming a high probability of wrongdoing' are inherently inconsistent 'with a reckless defendant...who merely knows of a substantial and unjustified risk of such wrongdoing."
I don't know. Sounds a little circular to me. According to Global-Tech, willful blindness has "an appropriately limited scope that surpasses recklessness and negligence." Why not just say it squarely in a jury instruction? The problem here is that district courts are generally afraid to alter standard jury instructions in light of emerging case law. And appellate courts are generally reluctant to vacate major securities fraud convictions unless the jury instructions are blatantly improper. The Goffer opinion can be found here.
Monday, July 1, 2013
Professor Podgor's concise and outstanding analysis of the Supreme Court's opinion in Sekhar v. United States can be found here.
From the majority opinion:
"It may well be proper under the Hobbs Act for the Government to charge a person who obtains money by threatening a third party, who obtains funds belonging to a corporate or governmental entity by threatening the entity’s agent, see 2 J. Bishop, Criminal Law §408, p. 334, and n. 3 (9th ed. 1923) (citing State v. Moore, 1 Ind. 548 (1849)), or who obtains 'goodwill and customer revenues' by threatening a market competitor, see, e.g., United States v. Zemek, 634 F. 2d 1159, 1173 (CA9 1980). Each of these might be considered 'obtaining property from another.' We need not consider those situations, however, because the Government did not charge any of them here."
From the concurrence:
"To recognize that an internal recommendation regarding a government decision is not property does not foreclose the possibility that threatening a government employee,as the government’s agent, in order to secure government property could qualify as Hobbs Act extortion. Here, after all, petitioner’s ultimate goal was to secure an investment of money from the government. But the jury found only that petitioner had attempted to obtain the general counsel’s recommendation, so I have no occasion to consider whether a Hobbs Act conviction could have been sustained on a different legal theory."
Translation: Note to the Government. Charge the case more intelligently next time.