Tuesday, August 31, 2010
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 (0)
Thursday, August 19, 2010
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.
The Wall Street Journal is reporting here that baseball great Roger Clemens will soon be indicted by a federal grand jury for perjury.
Tuesday, August 17, 2010
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.
Monday, August 16, 2010
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!
Sunday, August 8, 2010
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)
Wednesday, August 19, 2009
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
Sunday, June 28, 2009
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.
Monday, May 18, 2009
Wednesday, April 1, 2009
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.
Court's Order - Download 520_OrdGrantTrav 033109
Tuesday, March 10, 2009
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).
Sunday, November 23, 2008
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)
Friday, June 20, 2008
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?
Tuesday, June 10, 2008
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
Friday, May 30, 2008
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)
Saturday, April 26, 2008
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.
Tuesday, April 15, 2008
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)
Sunday, March 30, 2008
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."
Wednesday, March 26, 2008
Philly.Com (AP) - Fifth Day of Deliberations End in Wecht Fraud Trial; Pittsburgh Tribune Review - Wecht Deliberations to Resume Thursday
Wall Street Journal - Paulson Joins Advocates of Wider Fed Oversight
Monday, March 24, 2008
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.
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.