July 14, 2011
Clemens - This Case Could Go Into Extra Innings
Clearly the first question that will need to be answered is whether Roger Clemens can be retried. As noted here, double jeopardy will be the source of the controversy. The defense will likely argue that they had no choice but to ask for a mistrial and were provoked by the prosecutorial misconduct into taking this course. In contrast, the prosecution may resort to an argument that the conduct was inadvertent and that a retrial will not jeopardize Clemens. See Del Quentin Wilber, Washington Post, Roger Clemens perjury trial ends in mistrial after prosecution error
Prosecutors enter the next inning with two strikes against them - they had not one, but two instances where the judge needed to reign them in for not adhering to his rulings. If they get a third strike they are out.
On the other hand, if the defense loses the double jeopardy motion, there is the possibility that they will seek to take this issue up on an interlocatory appeal. This means we are into extra inning as a higher court is asked to review the double jeopardy ruling.
And the equally significant issue is what about the collateral consequences that continue to remain in question. That being, does Roger Clemens join the folks in the Hall of Fame?
What continues to bother me is whether the government should be playing this game. Should our precious taxpayer's dollars be used on such a case?
Clemens - The Game Should Have Been Played
I must respectfully disagree with my colleague. (see here)
The judge appears to me to have jumped the gun. The defense, shown the videotape ahead of time, made no motion to redact. It didn’t object when it was shown to the jury. Apparently, the defense didn’t see it as harmful. Most likely, as Clemens said before Congress, the defense will agree that Pettite (Clemens’ good friend) was honest but argue that he was mistaken about what Clemens said (and I wouldn’t be surprised if Pettite admits he might have misunderstood Clemens), and thus the hearsay evidence as to what Pettite told his wife didn’t bother the defense.
Perjury cases, especially those involving investigations and grand jury proceedings, often include hearsay in questions: "Mr. Jones testified as to x; do you agree, Mr. Witness?" And, a curative instruction that the fact that a question assumed something happened is no evidence that it did happen is considered sufficient.
To be sure, this instance is somewhat different since the judge had previously told the prosecutor that Mrs. Pettite’s proposed testimony was inadmissible. And, probably most importantly, the judge was irked by the prosecutor’s opening that mentioned that Clemens’ teammates used steroids in seeming disregard of his ruling that such testimony was inadmissible – to me, apparently a much more blatant error.
I am happy to see a judge assert his authority and strongly react to a prosecutor’s disregard of his rulings. Most do it too gently. I do think, however, based on what I know at this time, that the judge may have overreacted.
Since the defense apparently moved for a mistrial and since it is unlikely that the defense will be able to demonstrate that the prosecutorial misconduct was designed to force the defense to do so, I doubt that double jeopardy will lie. Thus, at the end of the day – or the summer – Clemens may not really benefit, as Ellen says. And besides the additional cost and loss of a possibly favorable jury Ellen mentions, there is a psychological cost to a defendant, even a Texas tough guy like Roger Clemens, to get ready again to defend himself.
Of course, even assuming that Clemens did lie, I have mixed thoughts about whether this prosecution should have been brought in the first place. Perhaps we will discuss that later.
Addendum - A later press report here indicates that Judge Walton specifically instructed the prosecutors to eliminate mention of Mrs. Pettite's statements in the videotape. If so, the prosecutor's misconduct , however inadvertent, is more egregious and the judge's mistrial declaration more justifiable than I had believed based on early press reports, although I still think that the error could have been cured, and the prosecutor adequately "punished," by a strong curative instruction. Nonetheless, perhaps I, and not Judge Walton, jumped the gun. (lsg)
Commentary on Roger Clemens Mistrial - Called for Rain
Judge Reggie Walton, nominated to the federal bench by President George W. Bush, just tossed out for today (mistrial) the Roger Clemens case. Hon. Walton had previously been appointed an Associate Judge of the Superior Court of the District of Columbia by President Ronald Reagan and later George H. W. Bush. He has sat on several high profile cases and been tough. For example, he was the judge that gave a sentence to Scooter Libby of 30 months in federal prison and a fine of US$250,000, a sentence on which Libby was later granted clemency.(see here) This is not the first case that prosecutors have had issues on with regard to abiding by the rules (e.g.,Ted Stevens discovery fiasco here). Several thoughts:
- Some will argue that Judge Walton did what needed to be done. After all, one can't erase from the minds of jurors inadmissible evidence of this magnitude. This is a he said -he said case and the veracity of a key witness will be crucial in this trial. An inadmissible compromise of this evidence could unfairly slant the case against the defendant. Others will take the opposite position.
- Judges make tough calls and it is easy to call something "harmless error" and hope that there is later overwhelming evidence that will support that position. But that isn't the right way to judge the case - it needs to be examined at the specific point in time when the violation occurs, as was done by Judge Walton.
- This is not necessarily a "win" for the defense. Clemens, if paying his lawyers by the hour (more than likely), could have additional attorney fees to contend with. Not to mention that the defense seemed to like this jury - and there is no assurance that if this case is retried they will have as favorable a jury.
- Prosecutors need to be careful. They guard our most important rights.
- A key issue that will be up to bat next is whether Clemens can be retried. The defense will likely argue that the jury was sworn and double jeopardy bars a retrial. The prosecution will argue that trial is permitted and that what happened was inadvertant (see LA Times here). Key issues here may be whether the defense asked for the mistrial and whether the prosecutorial conduct goaded the defense into having to ask for a mistrial (if in fact they even did). The leading Supreme Court decision that will be examined is Oregon v. Kennedy, 456 U.S. 667 (1982). One case interpreting Kennedy stated:
"[I]n Oregon v. Kennedy, the Supreme Court created an exception to this rule when it held that the Double Jeopardy Clause does bar retrial in the limited situation where the government engages in prosecutorial misconduct which gives rise to a successful motion for mistrial, and such misconduct 'was intended to provoke the defendant into moving for a mistrial.'"U.S. v. Doyle, 121 F.3d 1078 (7th Cir. 1997).
- The more important question, however, is whether such a case is worth expending our precious tax dollars. Hopefully prosecutors will carefully consider this question.
June 16, 2011
NACDL's 1st Annual West Coast White Collar Conference, “Turning The Tables On The Government” – “Twitter, Facebook & Google in the Courtroom: High Profile Defense in Real Time,” Thursday, June 16, 2011
Guest Blogger: Darin Thompson, Assistant Federal Public Defender, Office of the Federal Public Defender (Cleveland,OH)
The seminar opened with a discussion of the intersection between the internet (especially so-called “social media”) and the courtroom. The discussion was moderated by Gail Shifman, and the panel included Leslie R. Caldwell, Rusty Hardin, Dennis P. Riordan, and Allen J. Ruby.
The panel started by discussing cases with intense media scrutiny. High profile cases can arise due to the notoriety of the client, as was the case with Mr. Ruby’s former client Barry Bonds. But as Ms. Shifman noted, any kind of case or defendant can become notorious, as the glare of the media spotlight can be prompted by the facts of the case. The skills discussed can be required by cases in any criminal defense practice.
Mr. Hardin stressed determining early in the case to what extent the client’s reputation in the community is especially important, i.e., a celebrity or politician, and if so, react more proactively in media response. He stressed that the storyline of the case for the media will be set very early, perhaps in the first 36 hours, and will be repeated as the media updates the story.
Mr. Ruby spoke about a client’s concerns when under the spotlight: a strategy that repairs damage to reputation, to the extent possible. The internet has changed the game in many ways, but one is that it never forgets: every news story remains preserved for future searches, making “weathering the storm” less viable of a strategy than in years past.
Mr. Riordan discussed picking potential media outlets to suit your strategy: not every client and case will benefit from a discussion with Nancy Grace or her ilk, but some will. Different kinds of print media and bloggers are well suited to other kinds of cases.
Multiple panelists referenced the Duke rape case as one of the finest examples of excellence in media strategy. The choice of media, themes and messengers were all lauded.
Where reporters are pressing attorneys for comments, but public comments would not be beneficial (i.e., are part of the media strategy), off-the-record or background comments to the press may be useful, either to “hold them at bay” or to begin to influence the media coverage of a case. Where attorneys are gagged not by strategy, but by court order, motions can be drafted to convey the client’s position.
Another point stressed by multiple panelists was that the jury will remember what the lawyers say, and therefore attorneys should be careful before they make specific factual assertions in the press.
The panel discussion turned to specific social media issues. Use of social media research on witnesses or jurors was discussed, and it was noted that the use of third persons to surreptitiously access Facebook pages has been repeatedly characterized as unethical in numerous bar opinions.
Jury control in the age of social media and internet saturation was discussed. All panelists agreed that ordinary jury admonitions on these topics are seemingly “not processed” by jurors: it is simply unfathomable to not use the internet. Suggestions included requesting Facebook and Twitter information from prospective jurors (perhaps being given only to the court), or requesting the strongest possible judicial warnings to jurors.
June 06, 2011
Do You Really Need Five DOJ Lawyers to Prosecute John Edwards
A key problem when a DC Prosecution team is sent in to investigate and perhaps indict on conduct, is that they examine the conduct out of the context of the typical case seen in the local U.S. Attorneys' Office. They don't see the run-of-the-mill drug, immigration, or fraud case that typically comes through the U.S. Attorneys' Office. They become champions of a single or multiple case that they investigate, and with a single lens proceed or not proceed with their cause.
One has to wonder if this may be playing a part in the John Edwards prosecution. Mike Scarcella, over at the BLT Blog, notes here that the Public Integrity prosecutors are teaming up with some local prosecutors in this case. But it seems according to his blog entry that "a former chairman of the Federal Election Commission," is saying that the alleged activity is not criminal - and is not even a civil violation.
Whether the prosecutors, or Edwards and his defense team and others, are correct on whether this is a crime or even civil violation, is only half the problem. The other half is why are five lawyers from the department of justice working on an alleged election violation case. There is some real crime out there - even some real white collar crimes like identity theft and credit card fraud. Wouldn't our tax dollars be better spent on this?
Wesley Snipes - Cert Denied
The United States Supreme Court denied certiorari in the Wesley Snipes case (for background see here). His Petition to the highest court had raised questions regarding proof of venue in failure to file criminal tax cases. The next possible step would be for him to file a Motion to Vacate under 28 U.S.C. 2255.
See Order - Download Snipes
June 03, 2011
According to a DOJ Press Release, it's a 6-count indictment "for allegedly participating in a scheme to violate federal campaign finance laws." "The indictment, returned in the Middle District of North Carolina, charges . . . . one count of conspiracy to violate the federal campaign finance laws and to make false statements to the Federal Election Commission (FEC); four counts of accepting and receiving illegal campaign contributions from two donors in 2007 and 2008; and one count of concealing those illegal donations from the FEC." The press release states:
"According to the indictment, while a candidate for President of the United States, Edwards conspired with other individuals to accept and receive campaign contributions in excess of limits imposed by the Federal Election Act in an effort to protect and advance his candidacy from disclosure of an ongoing extra-marital affair and the resulting pregnancy. The indictment alleges that between 2007 and 2008, Edwards accepted and received more than $900,000 as part of this effort."
1) This is a technical case - reporting requirement - is it really necessary to have 6 counts? Did the DOJ include conspiracy in the hopes that they could secure a plea or alternatively if going to trial - get the jury to at least compromise by convicting on one count?
2) The affair will likely not play well with a jury. But on the other hand, isn't he needed now as a father?
3) Should this be criminal? Even if he improperly handled his campaign finances - which we do not know at this point - couldn't this be more appropriately handled via a civil action that would recover the money with penalties. Do we really need to clog up our criminal dockets with this kind of case.
June 02, 2011
Will Strauss-Kahn’s Bail Conditions be the Norm?
Dominique Strauss-Kahn is not accused of a white-collar crime, but he is a prototypical white-collar defendant – important, rich, and well-connected.
Strauss-Kahn, a French citizen accused of attempted rape and other crimes, was denied bail at his arraignment by a New York City lower court judge. A major justification was that France (like Germany, China, Japan, and many other nations) will not extradite its nationals. Subsequently, Strauss-Kahn’s experienced and able attorneys, desperate to get him released, proposed a highly onerous bail package, which a higher court judge accepted over the prosecutor’s strenuous objection. That bail package consists of a $1 million cash bond, an additional $5 million bond secured by a home owned by Strauss-Kahn’s wife, home confinement in New York City with an ankle bracelet, inside and outside video cameras, and even a 24/7 armed guard (Why armed? To shoot him if he tries to escape? To prevent the French foreign legion from freeing him?). These security measures reportedly will cost $200,000 a month. Strauss-Kahn, like all persons confined at home pre-trial, will receive no jail credit for his period of house arrest.
One wonders whether Strauss-Kahn’s bail conditions will become a prototype for bail conditions for major white-collar defendants, at least those with foreign or multi-national citizenship (an increasing number with the expansion of both the global economy and prosecutorial jurisdictional reach). The setting of bail is perhaps the most unguided and unpredictable of judicial decisions. Judges have wide discretion, amorphous standards, and, at least initially, generally little information about the case and the defendant. It is to be expected that judges will look for similar cases or similar defendants for a model. And, as recent history has shown, the most aggressive and/or harsh prosecutorial practices employed in the prosecution of violent and drug crimes (lengthy sentences, seizure of assets, restriction of counsel fees, eavesdropping and the like) soon work their way into the area of white-collar prosecution. If the Strauss-Kahn bail conditions become a standard, we can expect severe and restrictive home confinement bail conditions for white-collar defendants.
April 18, 2011
Reflecting on Skilling after the Barry Bonds Verdict
I was annoyed by the result in Skilling—that the unquestionable honest-services error was “harmless” beyond a reasonable doubt. But at the time I couldn’t articulate exactly why. After the Bonds verdict, I can. In short, the Bonds verdict illustrates the silliness of the conclusion in Skilling that appellate courts can and should sit as the 13th, 14th, and 15th jurors, then use a cold record to speak for the first 12 jurors while pretending appellate courts have crystal balls that make this okay.
Compare the two cases. Skilling’s trial was infected by honest-services error: in the indictment; in the evidence; in the argument; and in the instructions. Kicking a door cracked open by the Supreme Court in Pulido, the Fifth Circuit swept this under the rug—finding harmlessness—by pretending it could satisfactorily predict that the jury would have convicted on all counts even absent the error. To be sure, this put the nail in the coffin for the Yates standard of review, which said that when multiple theories are charged and instructed and one is impermissible, reversal usually is automatic because it is “impossible to tell” whether the jury relied on the impermissible theory. The Yates standard respected the constitutional right to an impartial jury of one’s peers (which appellate courts concerned with finality and efficiency certainly are not); it recognized the limitations of an appellate court’s ability to predict the past under changed circumstances; and it acknowledged that juries are composed of human beings (not robots) who can be and often are influenced by intangibles not apparent in a paper record.
The Bonds verdict illustrates why eradicating the Yates standard was a bad idea—and indeed leads to a standard that infringes the right to an impartial jury of one’s peers. Bonds was charged with repeatedly lying to a grand jury, and obstruction of justice essentially based on repeatedly lying to that grand jury. With a proper indictment and charge, the impartial jury of Bonds’ peers hung on whether Bonds lied to the grand jury, but agreed that he obstructed by lying to the grand jury. There are hyper-technical legal ways to attempt to explain this—but in reality (where jurors live), the verdict makes little sense. And surely Bonds’ attorneys will file a motion challenging the sole conviction on this basis.
But more importantly to me, Bonds illustrates what was right with Yates and what is wrong with Skilling. Appellate court’s aren’t very good at predicting the past under changed circumstances. I’d venture to guess that if the Fifth Circuit judges who decided Skilling had placed bets on the Bonds verdict, they’d have batted 0 for 3 predicting hung counts on lying but conviction on obstruction based on lying.
I hope the defense bar won’t give up on the Yates standard.
April 13, 2011
News Reports on Verdict in Barry Bonds Trial
Maura Dolan, LATimes, Barry Bonds Convicted of Obstruction of Justice in Steroids Case
Ben Forer, ABC News, Barry Bonds Convicted of Obstruction of Justice, but Jury Hung on Other Charges
Fox News, Bonds guilty of obstruction of justice
Juliet Macur, NYTimes, Bonds Guilty of Obstruction of Justice
Laird Harrison & Dan Levine, Reuters, U.S. jury finds Barry Bonds guilty on one count
Alan Duke, CNN, Bonds convicted of obstruction of justice
Why is it that the headlines tend to focus on the conviction and not the counts that did not result in a conviction (although it is noticed that ABC News did not do this). Was this long investigation and trial worth it? Is this how our tax dollars should be spent?
For background see here.
March 06, 2011
Wesley Snipes Files Cert Petition
Actor Wesley Snipes has filed his cert petition in the Supreme Court. The two questions presented are:
1. Is an accused person deprived of the right under Article III and the Sixth Amendment to be tried only by a jury of the community where venue is proper, when factual questions determinative of whether venue has been correctly laid are determined solely by a jury selected in the place challenged by the defendant as incorrect?
2. Where venue is a contested factual issue in a criminal trial, does the government bear a burden of proof beyond a reasonable doubt or only by a preponderance of the evidence?
Petition - Download WTS cert final 022811
March 03, 2011
ABA White Collar Crime Conference - Public Corruption Panel
This afternoon breakout session on public corrruption was moderated by Joshua R. Hochberg (McKenna, Long & Aldridge).
Jack Smith, Chief of the Public Integrity Section of the Criminal Division of the Department of Justice,spoke about how his office was moving cases along. He stressed the importance of maintaining the deadlines that are established. He also stated he has not found a problem finding statutes to use when bringing state and local corruption cases post the Supreme Court's modification of 1346. He said that other statutes are available to bring conflict of interest cases.
Robert M. Cary, a partner in the Washington, D.C., office of Williams & Connolly LLP, noted the lack of transparency in discovery. Until there is an enforceable rule, it will be a problem.
Laura A. Miller, Nixon Peabody LLP, said that "successful representation is when my name and my client's name does not appear in the press."
Patrick M. Collins, Perkins Coie LLP questioned why the government can't go the extra mile and have open file discovery.
The panel discussed the Speech & Debate Clause and how it can affect a case. They also looked at discovery issues - Laura Miller noted the lack of uniformity on discovery issues. She mentioned how in the "rocket docket" they receive Jencks material the Friday before trial. Jack Smith said that if it is close - turn it over.Jack Smith said they sometimes he will highlight documents for the defense. He recognized his duty to go through documents and find Brady material. Laura Miller noted that we should all work together to manage discovery. A final topic discussed was venue.
(esp)(blogging from San Diego)
January 15, 2011
Tom Delay: Political Prisoner (Part 2)
In commenting here Wednesday about former Travis County District Attorney Ronnie Earle's shameful money laundering prosecution of Tom DeLay, I noted that:
"The election code conspiracy charge [against DeLay] was almost immediately thrown out because there was no such crime in existence in Texas, as Earle should have known, and as the state’s highest criminal court later confirmed."
R. K. Weaver sent in a comment disagreeing with my analysis. According to Weaver:
"While it is true that there is no express 'conspiracy' provision in the Election Code, there is a general 'conspiracy' provision in the Penal Code which, on its face, and historically was considered to apply to all crimes in Texas. The Texas Court of Criminal Appeals, an elected body that is entirely occupied by Republicans, held for the first time in the history of Texas law, and contrary to abundant precedent, that this provision was limited to Penal Code crimes and was not applicable to the thousands of crimes that exist outside the Penal Code. That decision is generally considered by Texas lawyers to be absurd on its face and blatantly political. Unfortunately, it is also not terribly uncommon. There is a good reason that this court is referred to as 'the clowns on the Colorado.'" [emphasis added].
"When Earle indicted DeLay for conspiracy to violate the criminal provisions of the Election Code he was acting on established and well known Texas legal principals. DeLay's victory before the Court of Criminal Appeals was more about the political landscape in Texas than about the state of the law. I anticipate that when the current case gets before that court they will once again carve a 'DeLay exception 'to the law." [emphasis added].
Weaver is mistaken.
Title 4, Section 15.02 of the Texas Penal Code is the general criminal conspiracy statute. In 1977, long before Tom DeLay's rise to prominence, the Texas Court of Criminal Appeals, the highest court in Texas authorized to rule on criminal cases, held in Baker v. State, 547 S.W.2d 627 (Tex.Cr.App.1977), that Section 15.02 (the general conspiracy statute) could not be applied to a criminal offense defined by another law (that is, defined by a law located outside of the Penal Code) unless the other law explicitly referenced the Penal Code. The non-Penal Code offense at issue in Baker was the Texas Controlled Substances Act. Baker followed a similar holding in Moore v. State, 540 S.W.2d 140 (Tex.Cr.App. 1977), which had found Section 15.01 of the Penal Code, the general attempt statute, inapplicable to the Controlled Substances Act. Both rulings were based on a strict reading of Penal Code Section 1.03(b) which stated in part that “[t]he provisions of Titles 1, 2 and 3 of this code apply to offenses defined by other laws, unless the statute defining the offense provides otherwise.” Since the conspiracy and attempt statutes were contained in Title 4, they could not apply to the Controlled Substances Act, the Court of Criminal Appeals reasoned, unless the Controlled Substances Act provided otherwise. The Controlled Substances Act did not provide otherwise, and did not contain its own attempt or conspiracy provisions. (The Texas Legislature later amended the Controlled Substances Act and it now expressly references Title 4 Penal Code offenses.) Both Baker and Moore were written by Tom G. Davis, a widely respected mainstream jurist. Judge Davis was a Democrat, as were all of the judges on the Court of Criminal Appeals at the time. In reversing Baker’s conviction and ordering the prosecution dismissed, Davis ruled that “[t]he complaint and information in the instant case do not allege an offense against the laws of this state."
Baker was still the law in Texas in 2005, when Earle brought his indictment against DeLay, and had been the law for 28 years. The pertinent portions of the conspiracy statute (Section 15.02) and of Section 1.03(b) remained the same. Earle’s original indictment of Tom DeLay charged that DeLay conspired in October of 2002 to violate the Texas Election Code. The Election Code is not a part of the Penal Code. In 2002, the Election Code did not contain a conspiracy provision or reference or incorporate Section 15.02. In other words, under authority of Baker and Moore, one could not conspire to violate the Election Code. The Election Code was amended, effective September 1, 2003, to permit application of Title 4 offenses, including the Section 15.02 conspiracy statute. But the amended version could not be applied to DeLay’s alleged conduct without violating Ex Post Facto principles. Ergo, Earle’s original indictment of DeLay did not, in the words of Tom G. Davis, “allege an offense against the laws of this state.”
According to a story in the Washington Post, Earle did not learn that there might be a problem with the original charge until his assistants told him about it, shortly after the indictment was returned. How sad. The Penal Code went into effect in 1973. The Election Code was enacted in 1975. Earle was elected Travis County District Attorney in 1976. Baker was decided in 1977. DeLay was indicted in 2005. When Earle found out about his mistake, he did not drop the Election Code conspiracy charge, which would have been the right thing to do. He re-indicted DeLay, using a new grand jury under dubious circumstances, but kept the Election Code conspiracy charge in the indictment. The trial court properly threw it out. The Court of Criminal Appeals affirmed in a 5-4 opinion.
January 12, 2011
Tom DeLay: Political Prisoner
The Washington Post reports here on the three year prison sentence handed down Monday to former House Majority Leader Tom DeLay by Texas state judge Pat Priest. DeLay was found guilty last November by an Austin jury of money laundering and conspiracy to commit money laundering under Texas criminal statutes.
The prosecution of DeLay by Travis County District Attorney Ronnie Earle and his successor has been nothing less than a travesty of justice. This is really not about Tom Delay. You can love him or you can hate him. It is instead about our collective glee whenever a person of an opposing ideology gets indicted.
Earle originally indicted DeLay for conspiracy to commit money laundering and conspiracy to violate the state election code. The election code conspiracy charge was almost immediately thrown out because there was no such crime in existence in Texas, as Earle should have known, and as the state’s highest criminal court later confirmed. The money laundering charge, and the conspiracy charge on which it is bottomed, should have never been brought either. Here’s why.
Delay's alleged laundering activity was accomplished through the writing of checks. DeLay was accused and convicted of knowingly conducting, supervising, and facilitating a transaction involving the "proceeds" of criminal activity in violation of the state money laundering statute, Texas Penal Code Section 34.02. In 2002, the year of the alleged offense, Section 34.01 of the Penal Code provided that "‘Proceeds’ meant "funds acquired or derived directly or indirectly from, produced through, or realized through an act." Section 34.01 defined "funds" as follows.
(A) coin or paper money of the United States or any other country that is designated as legal tender and that circulates and is customarily used and accepted as a medium of exchange in the country of issue;
(B) United States silver certificates, United States Treasury notes, and Federal Reserve System notes; and
(C) official foreign bank notes that are customarily used and accepted as a medium of exchange in a foreign country and foreign bank drafts."
So, in 2002 the "proceeds" of criminal activity meant "funds" acquired, derived, produced or realized through an act. "Funds" in turn included: coin or paper money designated as legal tender, circulating, and used as a medium of exchange; United States silver certificates, United States Treasury notes, and Federal Reserve System notes; and, official foreign bank notes used and accepted as a medium of exchange in a foreign country, and foreign bank drafts. Most conspicuously, "funds" did not include checks. This was no accident. The final version of the 1993 money laundering statute was far narrower than the draft first introduced in the Texas House of Representatives. The initial draft prohibited the knowing facilitation of a transaction involving "property" that was the "proceeds" of criminal activity. Property was defined broadly to cover tangible or intangible personal property as well as "a document, including money, that represents or embodies anything of value."
I am aware of no reported cases under the original Texas money laundering statute, prior to DeLay’s indictment, in which the proceeds of criminal activity were identified as checks. In the vast majority of the cases, the laundered proceeds consisted of currency. There were no reported cases even discussing whether a check could constitute laundered funds. The reason for this is obvious. Virtually no prosecutor in Texas thought that checks were "funds" under the old money laundering statute.
In 2005, the Texas Legislature amended the money laundering statute and broadened the definition of "funds" to include "currency or its equivalent including an electronic fund, personal check, bank check, traveler’s check, money order, bearer negotiable instrument, bearer investment security, bearer security, or certificate of stock in a form that allows title to pass on delivery." The House Research Organization’s analysis of the amendment stated that it would "broaden the definition of ‘funds’ to include money other than cash." The analysis also notes, in the "Supporters Say" section, that "[u]nder current law, prosecutors may not prosecute offenders for money-laundering if the offender received a form of money other than cash, such as checks or money orders. This is inadequate as it prevents prosecution under this statute in an array of cases." The new bill "would fix this problem by covering money received in a variety of forms other than cash." It gets even worse. Members of Travis County District Attorney Ronnie Earle’s own staff helped in the drafting of the 2005 amendment!
Of course DeLay could not be prosecuted under the 2005 version of the statute, for conduct that allegedly occurred in 2002, without violating the Constitution’s ex post facto clause. But that sort of problem did not bother Earle. He simply used the 2002 version, even though nobody thought back then that "laundering" via checks constituted laundering under Section 34.02.
The case is now headed for the higher courts. Here’s hoping that one of them does the right thing.
November 12, 2010
Picking the Wrong Person - Palin's Email Account
According to a DOJ Press Release, after a trial by jury the court issued a sentence of "one year and one day in prison for intentionally accessing without authorization the e-mail account of former Alaska governor Sarah Palin." The sentence was also for a misdemeanor obstruction of justice conviction premised upon his "deletions of records and documents with the intent to impede an anticipated FBI investigation." This individual was found not guilty of wire fraud and the jury failed to "reach a verdict on the identity theft charge."
It is good to see a prosecution and punishment for computer related offenses for activity that infringes on the computer privacy of another. But one also has to wonder if there would have been any case but for the fact that the victim was Sarah Palin.
August 31, 2010
Roger's Reputational Dilemma
As expected, Roger Clemens pled not guilty on Monday to charges of perjury, false statements, and obstruction of Congress. He is represented by two of the ablest white collar criminal defense attorneys in the country—Rusty Hardin of Houston and San Diego’s Mike Attanasio. I know these men and their work. They are stellar lawyers.
The government asked Judge Reggie Walton to make Clemens surrender his passport in order to reduce the risk of flight. Honest. They really did. Give me a break. Walton didn’t buy it.
It is generally assumed that Clemens could have taken five before Congress and was therefore foolish to testify and subject himself to possible perjury charges. I’m not completely convinced of this, since the activity Congress was investigating at the time appears to have been beyond the statute of limitations. How can you incriminate yourself by truthfully admitting to something that you can no longer be prosecuted for?
At any rate, Clemens appeared without a subpoena, so there was no question of him not testifying. His attorneys will be able to argue to the jury that he had everything to lose and nothing to gain by appearing and testifying. Ergo, he must have been telling the truth. This can be a powerful argument in skilled hands, particularly in front of a DC jury, but it is better not to be forced to make it at all-better not to be indicted in the first place.
Roger's dilemma is the dilemma of the client with exposure, even limited exposure, who cannot or will not do the prudent thing and shut the hell up. It is best not to testify under oath, or even talk to the government, if you face potential criminal prosecution. Just ask Martha Stewart. But some high profile clients cannot take the perceived damage to their reputations involved in invoking the privilege. Clemens had the example of Mark McGwire in front of him. McGwire’s reputation was permanently and severely damaged by his refusal, on Fifth Amendment grounds, to answer a Congressional panel’s questions.
I know, I know; the privilege protects the innocent as well as the guilty. But nobody believes that in television land. Had Clemens publicly invoked the privilege, he would have been scarred for life. And he is not some dime-a-dozen, $40 million bonus CEO. He is one of the immortals.
The reputational dilemma is not confined to high-profile clients or the decision to invoke the Fifth Amendment. As a prosecutor, I saw defendants refuse to take plea offers, including misdemeanors with no jail time, because they could not admit wrongdoing to a spouse or child. It is a reminder that the strategy and tactics of criminal defense work are not always confined to logical analysis. The human, emotional element is ever present.
August 31, 2010 in Celebrities, Congress, Current Affairs, Defense Counsel, Martha Stewart, News, Perjury, Privileges, Prosecutions, Prosecutors, Sports, Statutes | Permalink | Comments (6) | TrackBack
August 19, 2010
Roger Clemens Indicted
The Washington Post story is here and has a link to the indictment. Nothing yet up on PACER. Clemens is charged in six counts with perjury, false statements, and obstruction of Congress.
Clemens to be Charged?
The Wall Street Journal is reporting here that baseball great Roger Clemens will soon be indicted by a federal grand jury for perjury.
August 17, 2010
Blago Verdict: Read All About It
The former Governor of Illinois is convicted on one Section 1001 count while the jury hangs on the other 23 charges. The jury hangs on all counts against Blago's brother. The Los Angeles Times has the story here. When the testimony wrapped up two weeks ago, Esquire asked its reporter John Bohrer to pretend he was a juror and opine on the outcome. Bohrer's analysis of the evidence is here. In a remarkable bit of prescience, Bohner noted that, "the Government couldn't close the deal. And that's why I'm voting to acquit." Bohrer still hated Blago, but did not feel that he belonged in prison or was worth the expense to prosecute. "I'll hand it to the prosecution on one of these charges: It does seem like he stone-cold lied to the FBI when they questioned him about whether he mixed state business with fundraising." Pretty close call. Pretty amazing.
August 16, 2010
Ellen Podgor Receives Heeney Award
The National Association of Criminal Defense Lawyers' most prestigious award is the Robert C. Heeney Memorial Award, established in 1981 in honor of Heeney, NACDL's 18th President. According to NACDL's website, the Heeney Award "is given annually to the one criminal defense attorney who best exemplifies the goals and values of the Association, and the legal profession." Past winners have included such giants in our profession as Albert Krieger, Barry Tarlow, Nancy Hollander, Barry Scheck, Barbara Bergman, Gerry Goldstein, Lisa Wayne, and Jeffrey Fisher.
This past Saturday in Toronto, at its annual convention, the NACDL gave the 2010 Heeney Award to Ellen S. Podgor. I can't think of anyone more deserving. Congratulations, Professor Podgor!