White Collar Crime Prof Blog

Wesley Snipes - Will He Get A New Trial?

Wesley Snipes remains free despite the Government's attempt to revoke his bail.  Additionally, the court is allowing the defense the opportunity to file a motion for a new trial and has outlined the briefing schedule for the defense and government.

Court's Order -Download 533_OrdHoldingUnderAdvise 080510

(esp) (blogging from Los Angeles)

Gay Collars - Perhaps An Investigation Is Needed

Watching a part of NBC's Today Show of the interview with Richard Hatch (Survivor) (for background see here) and then hearing that he is arrested shortly thereafter, certainly has a chilling effect.  Hatch, on house arrest, did an interview with the media.  Listening to Hatch, the media, and his attorney, it sounds like permissions had been granted to do this interview (see here) but I have no information to confirm whether it was or was not. And why shouldn't an interview be allowed - after all even those in prison should be entitled to some First Amendment rights.  Is this related to prison security? And if so, does it make a difference that he is no longer in prison? Or was this one of the conditions of this house arrest? And if he violated one of the conditions of his house arrest, why would he chance this now?

Shortly after the interview, the media reports that he was taken from his home back to prison. What is problematic here is that during the interview he not only proclaims his innocence but also claims that anti-gay bias drove this prosecution.  

This latter claim needs to be investigated, and an investigation that occurs apart from DOJ individuals associated with the past administration. When someone is on the back end of their prison time (doing house arrest), the last thing they would want to do is jeopardize their ability to return to society. Someone needs to look at whether different treatment is being given to gay collars.

See Today MSNBC.com, ‘Survivor’ Richard Hatch is back behind bars -Mere hours after TODAY interview, reality show star taken into custody; see also Matt Caputo, Daily News, 'Survivor's' Richard Hatch arrested after Today Show with Matt Lauer; says anti-gay bias drove feds

(esp) 

Wesley Snipes Gets Oral Argument in the 11th Circuit

Actor Wesley Snipes has been granted oral argument in the 11th Circuit Court of Appeals. Snipes was convicted of misdemeanor tax counts and found not guilty of other conspiracy and tax fraud counts following a jury trial (see here). The oral argument is scheduled for November 2009.  Last year (September - September reporting period) less than 16% of  all Eleventh Circuit criminal appeals were disposed of on the merits following oral argument (1258 total criminal cases, 1059 terminated after submission on the briefs, and 199 terminated after oral argument see here).  Representing Snipes are Philadelphia area Attorney Peter Goldberger, former president of the National Association of Criminal Defense Lawyers Carmen Hernandez, Daniel Meachum (of Atlanta), and Linda Moreno (of Tampa). For a discussion of one of the issues likely to be raised on appeal, see here. 

(esp) 

Cert Granted in Conrad Black Case

More on this later. - here     

08-876

BLACK, CONRAD M., ET AL. V. UNITED STATES

The petitions for writs of certiorari are granted.

(esp) Blogging from Washington, DC.

Snipes Holds Onto Bail - Just Barely

Defendant Wesley Snipes made a Motion for Limited Travel for Work Obligations.  He sought permission to travel outside the United States for work on two films (Gallowwalker and Game of Death). The government objected to this post trial bail "on the grounds that Defendant Snipes traveled to Dubair, United Arab Emirates, in late November 2008 without obtaining prior permission from the Court."  The court acknowledged that Snipes had violated his conditions of release for several reasons including "failing to notify his Pretrial Services Officer when his trip to Bangkok was canceled." But as the court noted, "[w]hile it does appear that on two occasions Defendant Snipes exceeded his travel conditions as set forth in his terms and conditions of release and the Court's July 2, 2008 Order, it is also true as pointed out in Defendant Snipes' moving papers that he has never failed to appear at the many proceedings in this case where his presence was required." In the end, the court granted the motion but did place restrictions on Snipes.

Snipes was represented by Carmen Hernandez, Linda Moreno, Dan Meachum and Peter Goldberger.

Court's Order -  Download 520_OrdGrantTrav 033109

(esp)

Where Did They Graduate?

Chronicle of Higher Education has a piece that names the institutions for some of what they call "disgraced alums."  To be evenhanded, they couple this with a recognition of a famous grad of the institution.  See here  (subscription required).

(esp)

Conrad Black Writes

Conrad Black writes from a U.S. prison in Florida a piece titled, From my cell I scent the reeking soul of US justice.  It appears in the Sunday Times (UK).  Perhaps the most interesting aspect of his piece is his evaluation of the U.S. grand jury process.  I also recommend reading the comments following the column. If these comments are representative of thoughts throughout the world, then DOJ has a lot of work ahead on its international relations.  Interestingly, Doug Berman's Sentencing Blog here, is getting a different set of comments to this piece.

(esp)(w/ a hat tip to Brenda Rossini)

The Government Files Notice of Appeal in the Snipes case

Following the pre-appeal motions in the Wesley Snipes case is not easy.  The latest is that the government filed a Notice of Appeal in the 11th Circuit ( Download usnoa_061908.pdf) and one has to figure they must be contesting the bail order granting Wesley Snipes bail pending appeal. The court in the Middle District of Florida granted bail finding that Wesley Snipes was not a flight risk and that the court was "not prepared to say that the issues on appeal are patently frivolous or asserted merely for purposes of delay." (see here).  It seemed simple - some courts grant bail and some deny it (see here).  When it is denied, one sees the accused before the appellate tribunal asking for relief.  But could it possible be that the government is appealing a bail order of a case involving misdemeanor convictions?

(esp)

Appellate Counsel for Wesley Snipes

Actor Wesley Snipes has hired Philadelphia lawyer Peter Goldberger as his appellate counsel. In addition to entering his appearance, Goldberger filed a Motion to Stay Further Appellate Proceedings arguing that the "Court should cancel or suspend the briefing schedule pending the entry by the district court of an amended or supplemental judgment containing all elements of the sentence to be imposed, including any imposition of costs of prosecution."

Motion - Download 11MCANBR.pdf

(esp)

Government Files Cross Appeal in Wesley Snipes Case

The government filed a Notice of Cross-Appeal in the Wesley Snipes case (see below).  How far this will get, however, remains to be seen.  Certainly there are several questions that one has to ask here -

• What could they possibly be appealing?  Snipes received the prison sentence the government asked for  (see here)- three years. (see here) They can't appeal the jury's failure to convict on the counts he was acquitted on.  Thus, the only remaining basis could possibly be the court's failure to impose any fine, or to make "restitution" (payment of delinquent taxes) a special condition of supervised release.  Would they really make this a basis for a cross-appeal?
• Has this cross-appeal been through the approval process of the Solicitor General's office? And if so who approved it? (Paul Clements announced he was stepping down - see here)

Notice of Government Cross-Appeal -  Download Snipes.pdf

(esp - from Firenze, Italy)

Commentary on the Wesley Snipes Sentence

Wesley Snipes received the maximum sentence for his convictions, a sentence of three years (see here).  Co-defendants who were found guilty of conspiracy to defraud the IRS and presenting a false claim to the IRS received 10 years and 4 years and 6 months. A likely question on appeal will be whether Wesley Snipes deserved to receive the maximum penalty as his sentence. 

"'Snipes' long prison sentence should send a loud and crystal clear message to all tax defiers that if they engage in similar tax defier conduct, they face joining him and his co-defendants, . . . , as inmates in prison,' said Nathan J. Hochman, Assistant Attorney General of the Justice Department's Tax Division." (see press release). But some may question whether an individual should receive the maximum sentence in order to provide deterrence to others.  And should a person's celebrity status, warrant the imposition of a harsher sentence? 

See also Doug Berman's Sentencing Law & Policy here.

(esp)

Government Asks for 36 Months for Snipes

The government filed its sentencing brief (see here - Download usa_sentencing_memo_re_snipes.pdf ) in anticipation of the forthcoming Wesley Snipes sentencing hearing set for April 24, 2008. The brief calls for the court to impose a sentence of "36 months’ imprisonment and a fine of at least $5 million."  It also requests the court to deny bail pending appeal.  See Professor Doug Berman's Sentencing Law & Policy for his comments on this brief.

(esp) (w/ a thanks to Whitney Curtis)

Hollywood Producer & Former T.V. Company CEO Indicted

A press release of the Central District of California tells of "[a] Hollywood producer, who founded and was the chief executive officer of a publicly-traded television production and distribution company," being "indicted .... by a federal grand jury for allegedly orchestrating a fraud scam designed to artificially inflate the company's revenue and stock price."  It was a 13 count indictment that charged the founder of Team Communications Group, Inc., "with conspiracy, falsifying Team's books and records, making false statements in Team's annual and quarterly reports filed with the Securities and Exchange Commission, making false statements to Team's outside auditors, and giving false testimony to the SEC in a deposition." 

(esp)

In the News - Wecht, Kilpatrick, Paulson Talk, Enron

Philly.Com (AP) - Fifth Day of Deliberations End in Wecht Fraud Trial; Pittsburgh Tribune Review - Wecht Deliberations to Resume Thursday

DetroitNews.com - Mayor Kilpatrick to Get Legal Defense Funding;  Attorneys in Scandal to be Probed

ABA Journal - Ninth Circuit Bounces Judge From Case for Favoring Prosecution

Wall Street Journal - Paulson Joins Advocates of Wider Fed Oversight

AP - Citi Settles Enron Suit for $1.66 Billion

(esp)

Wesley Snipes and the Synder Decision

Wesley Snipes is set for sentencing on April 24, 2008. (see here)  Although found not guilty on the majority of counts against him, he was convicted of a couple of misdemeanor tax counts (see here). In addition to sentencing, it is likely that we will see an appeal down the road. 

On March 19, 2008, the Supreme Court issued a decision in Synder v. Louisiana, a case that bears little resemblance to Wesley Snipes tax matters as it is a death penalty case.  What perhaps might be relevant is that the Court struck down Allen Synder's conviction as a result of how the trial court handled jury strikes by the prosecution. The Court held that the rejection of a Batson claim as to one of the jurors was improper.  In Synder, the accused ended up with an all-white jury. (see also Scotus Blog here)

Now lets look at the Snipes trial.  Snipes did not even have an opportunity to contest prosecutor's striking of black jurors as there were no blacks on the venire.(see here).  It will be interesting to see if the decision in Synder will make the rejection of Snipe's change of venue motion more powerful. (see here). It's not that Snipes was deprived of a chance of the prosecutor or judge making an error in violating Batson.  Rather it's the fact that he has no claim whatsoever because of the venue where this case was prosecuted. The prosecutor did the striking by the selection of the venue.

(esp) 

News Update - Stephen Hudak, Orlando Sentinal story related to Snipes -IRS chases cheaters after figure in Wesley Snipes tax case gives up names

Addendum - Paul Caron's TaxProf Blog here.

Sex or Crime, Spitzer Has Been Punished?

Four individuals had a criminal complaint filed against them.  Two were charged with a conspiracy to violate federal laws related to prostitution.  The other two face charges of prostitution and money laundering. (See NYTImes here) Enter client 9 - an individual unnamed in the charges. The details of the D.C. meeting involving client 9, and how the woman meeting him was to arrive are outlined in the NYTimes here.  Some of the questions that are likely to be explored in the upcoming days are:

• Did Spitzer violate the Mann Act?  The Mann Act, 18 U.S.C. Sec. 2421, provides: "[w]hoever knowingly transports any individual in interstate or foreign commerce, or in any Territory or Possession of the United States, with intent that such individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned..." Even if this did amount to a technical violation, one has to seriously question whether consensual acts warrant prosecution.
• Will Spitzer need to be a witness in the case against the four individuals charged with conspiracy, prostitution, and money laundering?  Will he be given immunity?  In the federal system this would be "use" immunity as opposed to "transactional immunity,"  which means that anything he said or derived from what he said could not be used against him. 
• Was it really necessary to include all of these acts in the charging instrument? Prosecutors, obviously, knew who they were dealing with in this case.  But, on the other hand, did fairness require this to happen - should any one person be protected here more than others?

From a purely punishment perspective, and irrespective of Spitzer having any criminal culpability, it seems obvious that a "shaming" has occurred here.  Even if there was some criminal culpability, should taxpayer's dollars be spent on investigating and prosecuting this man. The higher the office holder, the longer the fall from power, and in this case it is pretty hard ground that Spitzer is landing upon.

(esp)

Addendum - Check out Brian Baxter's piece at The American Lawyer here. Some thoughtful quotes from Associate Dean Patricia Salkin are in this article. 

Analyzing Rep. Renzi's Indictment

The indictment of Rep. Richard G. Renzi is 26 pages in length and has 35 counts.  There are two co-defendants also charged, although these two do not face all the charges levied against Renzi.

The opening passages of the Indictment are descriptive and include items such as the location of his law degree, something his law school may not be too happy about. This is interesting in itself as it shows that he graduated in 2001 and was elected to the house in November 2002, although he has an extensive background in Renzi Investments, since 1995, something that is also discussed in this charging document.

Count One charges conspiracy, with the substantive acts of Hobbs and mail and wire fraud being the essence of the illegal agreement. The government, despite recent losses in the honest services realm, uses section 1346 as an unlawful act which formed the conspiracy. There are 28 overt acts specifically outlined in the indictment.  Although the overt acts appear to be many, they could easily be collapsed into relatively few items as they include separate counts for when a check is written and when it is deposited.

Counts Two - Ten charge honest services wire fraud. They are the substantive acts and are very much repetitive of what was described in the conspiracy count.  Thus, the fax of July 6th appears in both places. This is not unusual as the federal system allows the government to charge both the conspiracy and substantive act for the same conduct.

Count Eleven charges conspiracy to commit money laundering with count twelve being the concealment of money laundering, and counts thirteen to twenty-five being transactions in criminally derived funds.

Counts Twenty-Six and Twenty-Seven present Hobbs Act charges.

Counts Twenty-Eight, yet another conspiracy count, presents a conspiracy to commit insurance fraud.

Counts Twenty-Nine through Thirty-Two are the substantive charges of insurance fraud.

Count Thirty-Three through Thirty-Five pertain to false statements to influence insurance regulatory investigations.

The Indictment then presents a claim for forfeiture.

This indictment, like so many, is a classic example of the discretion afforded the government in charging in that many different statutes will often fit the conduct alleged to have been committed. As one finds in many cases, the government uses a good number of the tools in its box when presenting the charges. This is contrasted against cases where there has been an agreement already reached and the government may use an Information to charge one or just a few counts.

(esp)

Response to Dershowitz on Clemens

Professor Alan Dershowitz, writing at Huffington Post, has an entry titled, "Why Roger Clemens, Even If Innocent, Should Take the 5th."

Although I am a bit more neutral when it comes to baseball- although admittedly a Yankee fan - I concur with Dershowitz's assessment.  Speaking - even if innocent - can be harmful to your freedom. But the problem is more complicated.  It's a problem faced by anyone who is a celebrity or politician --  Silence is not golden.

If you speak you run the risk of having anything you say used against you - even if innocent. If you don't speak people make assumptions of guilt. And if a politician or celebrity this can tarnish your career.

Why is it that truthful testimony can be used against an individual? 

• For one the individual may not remember the exact words used in the prior statement and when subject to a sharp cross-examination, the person may come across as confused - or not telling the truth in a later trial.
• Second, there is always the missing statement that is used against the individual.  The person answers the questions asked and fails to include every little detail - after all they might be a bit nervous in testifying.  Hitting a ball in front of a good number of fans and non-fans is not quite the same as answering questions from those in Congress. So what if something is omitted?  What will the cross-examination look like if it is pointed out that this statement was not included in the legislative testimony?
• Finally, people view evidence from many different angles.  The same event may be told differently by several different people. Will this be viewed as a lie if it is ever presented at a later trial?

But there's a more important question here.  Is it fair to place celebrities and politicians in this catch -22? Is the testimony really needed for the hearing? How would the politician feel if the tables were turned and they were being asked questions because one person had implicated them? And don't tell me this is an invitation, I read co-blogger Peter Hennings entry here.

Some of us continue to harp on prosecutorial discretion and the many possible abuses that can arise from allowing prosecutors unbridled discretion. But maybe this is a place to discuss legislative discretion, and think about when Congress should take a step back and consider whether the testimony is really needed here and now.

(esp)

Venue in Snipes Case

Several posts have focused on the Wesley Snipes case, the trial and the verdict (see here, here, and here).  Actor Snipes was convicted on 3 misdemeanor tax counts, but acquitted on all other charged conduct including a count charging conspiracy. As previously discussed, the conspiracy count may have had a venue basis when charged, as venue can be found in either the place of the agreement or where any of the acts occurred.  But the tax counts have been argued as improper from the initial days.

Can the two be separated?  One case, United States v. Ebersole, 411 F.3d 517 (4th Cir. 2005) does a good job of noting an important policy argument in this area  of law -

"The Supreme Court has cautioned that the question of venue in a criminal case is more than a matter 'of formal legal procedure'; rather, it raises 'deep issues of public policy in the light of which legislation must be construed.' United States v. Johnson, 323 U.S. 273, 276 (1944). The Court also has observed that the venue provisions of the Constitution are meant to act as safeguards, protecting the defendant from bias, disadvantage, and inconvenience in the adjudication of the charges against him. Travis v. United States, 364 U.S. 631, 634 (1961) (citing U.S. Const. Art. III, § 2 (pertaining to venue)); U.S. Const. amend. VI (pertaining to jury trials)."

Was Snipes biased and disadvantaged here?  Does the fact that the jury venire that he as selecting jurors was all-white make a difference?

For comments from Paul Caron's Tax Prof Blog, see here.

(esp)

Will the Wesley Snipes Convictions Hold Up on Appeal?

Previously blogged was the acquittal of Wesley Snipes on the conspiracy and fraud counts, and also on three of the six tax filings counts. (see here). Peter Goldberger sent in an important comment on the Wesley Snipes three misdemeanor convictions.  He stated:

"Also worth noting is that Snipes was convicted only on counts where venue was much contested, both legally and factually.  Was he really a legal resident, for tax-filing purposes, of the Florida town where he went to high school, while living for years in NYC and LA as a movie star?  If not, the counts of conviction are precisely those most vulnerable on appeal."

This is an important point because conspiracy cases allow the prosecutor to bring charges in a host of different venues.  It can be the place of agreement or the place of any of the overt acts. With the acquittal of the conspiracy charge, is venue is lacking? Also lacking perhaps is the venue that might have been present if Snipes had been convicted on the fraud count (a count that included an aiding and abetting aspect).  So how does one get this case to Florida?  Couple these questions with a strong objection raised by defense counsel pre-trial to the venue, and the fact that the venire failed to include the race of the accused. But does the fact that the issue gains viability after trial, because of the acquittal of several counts, make a difference? 

(esp)