Friday, March 29, 2013
Monday, February 4, 2013
Announcement from the Fordham Law Moot Court Board
Each spring, Fordham University School of Law hosts the Irving R. Kaufman Memorial Securities Law Moot Court Competition. Held in honor of Chief Judge Kaufman, a Fordham Alumnus who served on the United States Court of Appeals for the Second Circuit, the Kaufman Competition has a rich tradition
of bringing together complex securities law issues, talented student advocates, and top legal minds.
This year’s Kaufman Competition will take place on March 22-24, 2013. The esteemed final round panel includes Judge Paul J. Kelly, Jr., of the Tenth Circuit; Judge Boyce F. Martin, Jr., of the Sixth Circuit; Judge Jane Richards Roth, of the Third Circuit; and Commissioner Troy A. Paredes, of
the United States Securities and Exchange Commission. The competition will focus on two issues that arise in the fallout of Ponzi schemes: whether the “stockbroker safe harbor” of the Bankruptcy Code applies to Ponzi scheme operators, and the application of SLUSA, which was recently granted cert by the Supreme Court.
We are currently soliciting practitioners and academics to judge oral argument rounds and grade competition briefs. No securities law experience is required to participate and CLE credit is available.
Information about the Kaufman Competition and an online Judge Registration Form is available on our website, www.law.fordham.edu/kaufman. Please contact Michael N. Fresco, Kaufman Editor, at KaufmanMC@law.fordham.edu or (561) 707-8328 with any questions.
Thursday, November 1, 2012
NACDL Defending White Collar Cases, New York, November 15-16th here
ABA Securities Fraud National Institute, New Orleans, November 15-16th here
NACDL White Collar Criminal Defense College at Stetson, St Pete Beach, Florida, Jan. 9-13 here
Friday, October 26, 2012
This panel was moderated by James Felman (Kynes, Markman & Felman, P.A.). The opening panelist, Hon. Ketanji Brown Jackson, Vice-Chair, U.S. Sentencing Commission, spoke about the 2012 Guideline Amendments which go into effect soon if Congress does not modify the changes. Some of these changes are in the white collar crime arena. Specifically, there are modifications to certain frauds – insider trading, mortgage fraud, securities fraud, and financial institution fraud. Many of these changes regard the determinations of loss. In some instances the commission changed the application notes.The speaker also noted that the Sentencing Commission is in a multi-year study of economic crimes. (proposed amendments can be found here)
Providing a congressional perspective was Bobby Vassar (Chief Minority Counsel, Subcommittee Crime, Terrorism, and Homeland Security, U.S. House of Representatives) who reminded us that no one gets defeated in an election by being tough on crime. Providing an executive perspective was Michael Rotker, Criminal Appellate Division, U.S. Department of Justice. From the defense side was Amy Baron Evans, Federal Defenders Sentencing Resource Counsel.
Two individuals provided international perspectives: Clarisse Moreno (Kynes, Markman & Felman, P.A.) and Stephan Terblanche (University of South Africa, Pretoria, South Africa). Ms Moreno noted that in France if you get two years or less, very rarely will you serve prison time. Absent it being a human rights violation, in Norway the maximum penalty is 21 years. Ms. Moreno also noted that the recidivism rate is low in Norway. Stephan Terblanche noted that where movies and other items from the U.S. are looked at elsewhere, the sentencing guidelines do not export very well. Having the international perspective offered by these speakers was particularly fascinating and offered a welcomed dimension to this sentencing discussion.
The opening address was given by Edwin Meese III, former U.S. Attorney General. He talked about how to make our system “effective, efficient, and just.” He noted that the National Association of Criminal Defense Lawyers (NACDL) is aligned with the Heritage Foundation on this important issue of overcriminalization. He spoke about the improper use of the criminal law and process for political reasons and social regulation, emphasizing the misuse of limited resources. He gave some frightening examples of how ordinary law-abiding citizens were caught up in the criminal process. He said that the estimate today is that there are over 5,000 criminal statutes and then there are also regulatory offenses, and his estimate is over 300,000 federal criminal penalizing statutes and regulations. He noted the lack of a meaningful mens rea in many of these statutes. He mentioned how overcriminalization problems in the United States also involve cases in international law. He suggested that we need education (educating the public and legislators) and also legislators should not be able to delegate criminal responsibility to an agency for the creation of a crime. The legislature should also make crimes clear with a necessary ingredient being the mens rea. In this regard he advocated for an innovation of using mistake of law, something that is being experimented with in New Jersey. Finally, placing all criminal laws in Title 18 is something that he thinks will assist.
This opening address was a lead into a discussion of the next panel on the topic of Overcriminalization,
a panel moderated by Professor Sara Sun Beale. She started with questions of asking whether we have a problem of Overcriminalization and if so, what do we should do about it. The first speaker was Melodee Hanes, Acting Administrator, Office of Juvenile Justice & Delinquency Prevention, U.S. Department of Justice. She said that U.S. detains youth five times more than the next industrialized country. She noted that Japan does not detain their youth; they resolve issues in an alternative method. Community based alternatives are needed. Professor Roger Fairfax (George Washington) discussed the “smart on crime” philosophy. Charles J. Hynes, District Attorney of Kings County, Brooklyn, New York, who created 29 new alternative programs, including a re-entry program, noted the need for criminal law reform.The last speaker was Professor Luis Chiesa (Pace Law School), who offered a comparative perspective from a civil law view. He suggested using rules of construction similar to European courts and others. This international perspective added another dimension to this discussion.
Sunday, October 14, 2012
NACDL, Defending the White Collar Case, see here
Second Annual White Collar Criminal Defense College at Stetson, see here
International Society for the Reform of Criminal Law, ABA Criminal Justice Section, AALS, Fifth Annual Fall Institute - Sentencing, Reentry, Juvenile Justice, Legal Education, see here
Friday, October 5, 2012
The NACDL White Collar Criminal Defense College at Stetson is a "boot-camp" program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter. For more information here and to apply here.
When - January 9-13
Where- Stetson University College of Law, 1401 61st St. S., Gulfport, FL 33707
Hotel - Loews Don CeSar Hotel, 3400 Gulf Boulevard, St. Pete Beach, FL 33706
A. Brian Albritton - Phelps Dunbar, LLP
Michael Attanasio - Cooley, LLP
Henry W. Asbill - Jones Day
Steven Benjamin - Benjamin & DesPortes, P.C. (President of NACDL)
Joseph Bodiford - Bodiford Law
Barry Boss - Cozen O'Connor
Ellen C. Brotman - Montgomery McCracken
Robert M. Cary - Williams & Connolly, LLP
Lee A. Coppock - Stetson University College of Law
David Debold - Gibson Dunn
Lucian E. Dervan -Southern Illinois University School of Law
Ernest Dixon - Navigant Consulting
Donna Lee Elm - Federal Public Defender, Middle District of Florida
James E. Felman - Kynes, Markman & Felman, P.A.
Jack E. Fernandez - Zuckerman Spaeder, LLP
Roberta Flowers - Stetson University College of Law
Todd Foster - Todd Foster Law Group
Ross H. Garber - Shipman & Goodwin, LLP
David Gerger - Gerger & Clarke
Lawrence S. Goldman -Goldman & Johnson
Helen Gredd - Lankler Siffert & Wohl, LLP
John Wesley Hall, Jr. - John Wesley Hall Little Rock Criminal Defense
Jan Lawrence Handzlik - Venable, LLP
Rusty Hardin - Rusty Hardin & Associates, LLP
A. Jeff Ifrah - Ifrah Law
G. Douglas Jones - Haskell Slaughter Young & Rediker, LLC
Anthony A. Joseph - Maynard Cooper and Gale, P.C.
David S. Krakoff - Buckley Sandler, LLP
Sara Kropf - Baker Botts, LLP
Latour Lafferty - Fowler White Boggs
John F. Lauro - Lauro Law Firm
Johnny Lee - Grant Thornton, LLP
Janet Levine - Crowell Moring
Abbe David Lowell - Chadbourne & Parke LLP
Bruce Lyons - Lyons & Sanders Chartered
Edward A. Mallett - Mallett and Saper, L.L.P.
Bruce Maloy - Maloy, Jenkins & Parker
David Oscar Markus -Markus & Markus, PLLC
J. Cheney Mason - J. Cheney Mason, P.A.
Jon May -May & Cohen,P.A.
Michael D.Monico - Monico, Pavich & Spevack
Jane W. Moscowitz -Moscowitz & Moscowitz, P.A.
Kevin J. Napper - Carlton Fields
Susan R. Necheles - Hafetz Necheles & Rocco
William Nortman - Akerman Senterfit
Cynthia Eva Orr - Goldstein,Goldstein & Hilley
J. Edward Page - Carlton Fields
Michael S. Pasano -Carlton Fields
Marjorie J. Peerce - Stillman & Friedman, P.C.
Patricia A. Pileggi -Schiff Hardin, LLP
Barry J. Pollack - Miller & Chevalier
Wes Reber Porter -Golden Gate University School of Law
Mark P. Rankin -Shutts and Bowen, LLP
Rochelle A. Reback -Reback Law, PL
Shana-Tara Regon -Director, White Collar Crime Project, NACDL
Charles H. Rose, III -Stetson University College of Law
Kerri L. Ruttenberg -Jones Day
Brian Sanvidge - Holtz Rubenstein Reminick LLP
Melinda Sarafa -Sarafa Law, LLC
Adam P. Schwartz -Carlton Fields
William N. Shepherd -Holland & Knight, LLP
Gail Shifman -Shifman Group
Neal R. Sonnett -Law Offices of Neal R. Sonnett, P.A.
Edward Suarez - The Law Offices of Ed Suarez, P.A.
Brian L. Tannebaum -Tannebaum Weiss, LLP
Larry D. Thompson - EVP Govt. Affairs, General Counsel & Corporate Secretary PepsiCo, Inc.
Gary R. Trombley -Trombley & Hanes
Lisa M. Wayne -Law Office of Lisa M. Wayne
Morris Weinberg, Jr. -Zuckerman Spaeder, LLP
Jeffrey Weiner -Jeffrey S. Weiner, P.A.
Adrienne Urrutia Wisenberg -Barnes & Thornburg, LLP
Solomon L. Wisenberg - Barnes & Thornburg, LLP
Sunday, September 30, 2012
The NACDL White Collar Criminal Defense College at Stetson is a “boot-camp” program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will cover client retention, investigation in a white collar case, handling searches and grand jury subpoenas, and dealing with parallel proceedings. Participants will have the experience of negotiating a plea, making proffers, and examining which experts to hire and how to protect the client in this process. Interactive sessions with top white collar practitioners will allow the participants to learn trial skills such as opening statements, cross-examination, jury instructions, closing arguments, and sentencing – all in the context of a white collar matter.
Stetson University College of Law
1401 61st St. S.
Gulfport, FL 33707
Loews Don CeSar Hotel
3400 Gulf Boulevard St.
Pete Beach, FL 33706
For more information here.
Sunday, September 23, 2012
The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. We invite law faculty from across the country to submit proposals to present papers or works in progress. The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines. The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work.
To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at Missy.Lonegrass@law.lsu.edu by September 22, 2012.Any late submissions will be considered on a space available basis only.
For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers. To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at email@example.com.
In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools. If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at firstname.lastname@example.org. For more information about CSLSA, visit our website at http://cslsa.us/.
Sunday, June 3, 2012
The recent federal sentencing guideline conference had a panel moderated by Professor Doug Berman (Ohio State) on fraud/theft - it was part two for this conference on the topic of the fraud/theft sentencing guidelines. The panelists were: Harry Chernoff (AUSA Southern District of NY); Lisa Mathewson (Law Offices of Lisa A. Mathewson); Tracy A. Miner (Mintz Levin Cohn Ferris Glovsky & Popeo).
Harry Chernoff emphasized his belief that who the judge is can make a difference in the sentence received in a fraud/theft case. Lisa Mathewson noted how "loss is an imperfect" statement of culpability. Tracy A. Miner suggested that one needs to "look at the motivation of the particular individual." In this regard there was discussion how a corporation may be getting a pass because of a deferred prosecution. Looking at 2B1.1 and how to assess "gain or loss," Lisa Mathewson reminded listeners that when the loss is "0" that is a number that can and should be used. Tracy Miner noted that prosecutors are trained to increase the loss figure. In this regard it was noted that loss in some cases can end up as 360 to life, because there are so many potential aggravators. It was noted that is important to look at lack of gain as a mitigating factor that warrants a move downward.
Harry Chernoff emphasized his belief that who the judge is can make a difference in the sentence received in a fraud/theft case. Lisa Mathewson noted how "loss is an imperfect" statement of culpability. Tracy A. Miner suggested that one needs to "look at the motivation of the particular individual." In this regard there was discussion how a corporation may be getting a pass because of a deferred prosecution.
Looking at 2B1.1 and how to assess "gain or loss," Lisa Mathewson reminded listeners that when the loss is "0" that is a number that can and should be used. Tracy Miner noted that prosecutors are trained to increase the loss figure. In this regard it was noted that loss in some cases can end up as 360 to life, because there are so many potential aggravators. It was noted that is important to look at lack of gain as a mitigating factor that warrants a move downward.
It was noted how courts set the bar extremely low in what will be considered "sophisticated means." Tracy Miner noted that computers being used should not make the conduct sophisticated, as even kindergarten students use computers these days.
Some panelists noted that one needs to look at what was the real conduct and whether it being increased just because this was conduct highlighted in recent days. Tracy Miner reminded listeners to try and convince the government of the benefits of the defendant’s conduct. For example, there may be good collateral consequences such as did special education kids benefit and will there be severe consequences if the loss is placed very high.
The end of the panel discussion looked at commission considerations on the horizon and one position taken by some was that the commission should look at the whole guideline as opposed to just tweaking parts.
Thursday, May 31, 2012
Some have been claiming that corporate prosecutions are down in numbers. It certainly has not seemed that way, so I was glad to see the numbers, which demonstrate that corporate sentencings have been average over the past few years.
Lisa Rich, Director of the Office of Legislative and Policy Affairs at the United States Sentencing Commission provided the following corporate statistics for the recent Federal Sentencing Conference (although I have reworded some of what she provided): In FY 2011, there were 160 organizational cases and 151 pled guilty and 9 were convicted after jury trials. Probation was ordered in 111 cases and 31 had court ordered compliance/ethics programs. Three cases received credit for self-reporting and 44 received credit for cooperating with the government. But of the approximately 74 cases in FY2011 for which the Commission had Chapter 8 culpability information, there were no entities receiving full credit for having an effective compliance program. Not one of the 74 cases received credit under subsection (f).
These statistics do not reach the full corporate efforts by DOJ since they fail to include non-prosecution agreements or deferred prosecution agreements that have not gone through chapter 8. So some bottom line observations: 1) if the government decides to prosecute a corporation - it has an incredibly high chance of success; 2) more emphasis needs to be put into teaching corporations how to operate an effective compliance program; 3) studies need to examine whether by using deferred and non-prosecution agreements the government is increasing prosecutions against corporate individuals (it certainly seems likely that this would be the case).
Tuesday, April 10, 2012
NACDL 2d Annual West Coast White Collar Conference - June 7-8, Lake Tahoe here
New York City Bar, 1st Annual White Collar Crime Institute - May 14, 2012 here (50% discounts off of member and non-member prices for government and public interest attorneys, students and academics; 50% discounts off of member and non-member prices for attorneys working for the District Attorney’s Office, U.S. Attorney’s Office, Legal Aid, New York Inspector General’s Office and other Law organizations; 20% discounts off of member and non-member prices for firms and corporations that register 4 or more people for this program).
WestLegalCenter, Defending Corporations and Individuals in Government Investigation - Conducting Effective Internal Investigations, (includes Daniel J. Fetterman and Mark Goodman) here (provides an interesting discussion on different aspects of an internal investigation).
Thursday, March 15, 2012
Saturday, March 3, 2012
The 2012 ABA White Collar Crime Conference had two ethics panels. The first, Top Ten Reasons You’ll Wish You Had Become a Trusts & Estates Lawyer: Ethical Pitfalls and Blunders in White Collar Practice, was moderated by Professor Bruce Green (Fordham). On this panel was Helen Gredd, Daniel R. Alonso, Evan A. Jenness, and Laura Ariane Miller. Professor Green skillfully walked the panel through a hypothetical that included a host of ethical problems. The panelists did not agree on everything - which is so common when discussing ethics issues. One thing was very clear - the white collar practice comes with many ethics dilemmas and defense counsel has to consider these issues throughout all facets of the case.
The second ethics panel also emphasized the difficulty for white collar practitioners, the title of the program being the Prosecution of Attorneys in Connection With Providing Legal Advice. This panel was moderated by Morris "Sandy" Weinberg, Jr., with the panelists discussing the prosecution of the associate general counsel of GlaxoSmithKline.
Sara M. Bloom started the discussion of the Lauren Stevens case by saying that this was not a case about a discovery dispute. This, she said, was a case of statements that were made to the government. Reid H. Weingarten , in response, emphasized how his client’s actions were not criminal. It was clear that Lauren Stevens was a strong enforcer at the company and that she was well-respected as being ethical. Further, she hired well-respected outside counsel. The question was - what more, if anything, could she have done.
Hon. Roger W. Titus noted that this was the only Rule 29 he has ever granted. He said that he talked to jury after this and they were pleased with the decision. He said, no one expressed concern about it being taken away from them – they just could not understand the prosecution.
Sandy Weinberg turned the tables around on this case to discuss prosecutors who fail to turn over Brady material - he asked - is it any different from what was being alleged here? Mary Patrice Brown, from the Department of Justice, said prosecutors must self report when there is a finding of a discovery violation. One hopes that others in DOJ will take her position - unless someone is going to die – give them the evidence. She noted that it can boil down to the "intent" – and reasonable minds can differ as to what the difference is with respect to intent. In this regard she said that attorneys are treated the same as any other person, although she did note that the DOJ Manual requires approvals for prosecuting an attorney (9-2.032).
Carl D. Liggio, Sr., a general counsel for 22 years, pointed out the huge challenges today for general counsel, with so many new law and regulations. You don’t know all that you need to know, he said. He told how he outlines all the negatives more forcefully then the positives and explains how it is not prudent for them to take risks. He said when it is blatantly illegal you need to put your foot down. He expressed concern that general counsel are facing reduced budgets. But he stressed the importance of supporting good valuable employees. "If you don’t support your people you have long term problems." He noted that when he accompanies someone to the SEC, he reminds the government that they too could be liable under 1001 for being misleading.
In response to Reid Weingarten’s comment that a proffer can make it difficult to put a client on the witness stand, Sara Bloom said that prosecutors who meet the person can find it much harder to prosecute the person.
(esp)(blogging from Miami)
This panel was moderated by Joseph G. Block (Venable). Panelists were Richard E. Byrne (Exxon), Marc R. Greenberg (Keesal, Young, & Logan), Gregory F. Linsin (BlankRome), and Stacey H. Mitchell (Chief, Environmental Crimes Section of the Environment and Natural Resources Division of the Department of Justice). The panel covered issues related to the ongoing investigation into Deepwater Horizon, Lacey Act violations, vessel pollution, and a host of other white collar related environmental matters.
The panelists talked about how to handle legal issues arising with emergency responders. Several panelists noted that the most important thing is to mitigate damages to injured, being candid to first responders, and telling them what they need to know - such as where folks may be.
When there is death or significant environmental damage occurs, you can expect that the government might investigate. Richard Bryne said you need to presume investigation - you need to set up a privileged internal investigation
The panelists talked about how to handle searches. Some panelists on the corporate side commented that you should have a developed plan in place; get to the facility as quickly as possible; instruct individuals to cooperate with the search warrant but also telling them that there is no way they must agree to be interviewed. The importance of truthfulness was stated. From the government perspective there is concern about the safety of agents.
The corporate and defense attorney panelists discussed approaches in giving Upjohn warnings to employees being interviewed. It was noted that Upjohn warnings can trigger questions from the employees being interviewed. It may be difficult for the company because they may not know at this point whether they will cooperate with the government in resolving the matter. There is also the question of whether to appoint counsel for company employees.
(esp)(blogging from Miami Beach, Florida)
Internal Investigations in the Age of Voluntary Disclosure
This breakout session, moderated by Keely Rankin (Dechert), concerned internal investigations. A hypothetical, about a telephone message left by a rambling anonymous whistleblower reporting on activities from another country, was used to discuss a variety of issues unique to internal investigations.
Catherine Razzano started the discussion from the perspective of corporate counsel trying to decide whether to investigate and who should do the investigation. She said that you need to do some immediate investigation just to decide how to proceed (e.g., can you do a routine audit; can you trace the call; can local counsel be of assistance). It is important to keep in mind that if it is a public company it has certain reporting obligations. If an HR person does the initial investigation, and the individual is not an attorney, you may lose the privilege. In house counsel brings a certain expertise and outside counsel brings a certain independence. It was emphasized that one needs to take a measured and consistent approach – these investigations cost money.
Angela M. Machala (Scheper Kim & Harris) looked at whether there might be a reason to launch more of an investigation and she also spoke to the advantages and disadvantages of starting with the most culpable employees in setting up interviews. Cultural differences can play a part in how you proceed.
Jonathan Leiken (Jones Day) looked at the problem of what happens when you're reviewing emails and you find more problems. He said to remember - when the movie gets played back, how will the client look the most responsive.
Ryan K. Stumphauzer (O'Quinn Stumphauzer) emphasized the importance of sitting down with the control group to define expectations.
On one hand you don’t want to give incomplete or inaccurate information and on the other hand you want to act quickly. The panelists discussed the possibility that the whistleblower could beat the company to the DOJ in reporting a problem.
One thing was clear - Dodd-Frank is very scary for counsel. Ms. Razzano notes - "[w]e want to protect our employees but we want to protect company to."
(esp)(blogging from Miami)
The official opening of the 26th Annual ABA White Collar Crime Conference began with opening remarks from Raymond Banoun, chair of the Institute, followed by remarks of the chair-elect of the ABA Criminal Justice Section, William "Bill" Shepherd of Holland & Knight. Shepherd noted how the ABA includes all aspects of criminal justice (prosecutors, judges, and criminal defense lawyers). He encouraged folks to get involved in the section.
The first panel, titled Recent Trials, featured three recent cases: Raj Rajaratnam, Loren Stevens, and the Lee B. Farkus trials.
The moderator, Ronald J. Nessim, took the speakers through several topics, including the Indictment, key pre-trial issues in each case, the media, discovery, proffers, parallel proceedings, joint defense agreements, and the trial.
Discussing the Farkus case, the prosecutor on the case -Charles Connolly-talked about the issue of how do you simplify a complex fraud scheme to make it understandable for the jury, and what schemes do you charge. Professor Bruce Rogow, defense counsel on the Farkus case, responded that the Indictment was too long and too difficult. Sara Bloom, the prosecutor handling the Lauren Stevens case said the indictment was narrowly tailed. Defense Counsel Reid Weingarten responded that he is still astonished that Lauren Stevens was indicted. Jonathan Streeter, prosecutor on the Rajaratnam case, noted that he did not try to include everything in the indictment. Simplification was a key theme throughout his comments on this panel. John M. Dowd, defending Rajaratnam, discussed the bill of particulars. He emphasized that the case was really not about wire fraud, although that was the basis for the wiretap.
The government power in these prosecutions was brought to life in the discussion of the venue issue in the Farkus case and the perp walk in the Rajaratnam case. The audience was clearly perturbed by the use of a perp walk in the Rajaratnam case, where the accused had cooperated for three years, had no record, was arrested in his apartment, handcuffed for some time at the station, and finally paraded in a perp walk. This was described by defense counsel as "toxic and prejudicial" and the audience applause to that statement sounded like there was agreement. Perp walks need to stop.
Interestingly none of the defense counsel expressed major discovery problems in their cases. Connolly, the prosecutor on the Farkus case, noted how they made the sixty million documents available to defense – they made a mirror imagine for defense and set up weekly conference calls with the defense. That said, John M. Dowd pointed out problems with items such as the affidavit for the wiretap and Bruce Rogow discussed problems with respect to cooperation in the Farkus case coming on the eve of trial. He also noted how the inability during trial to go into certain motivations by cooperating witnesses made his case difficult.
Reid Weingarten emphasized that one needs to think carefully before agreeing to a proffer. He noted that once you make a proffer it is problem putting the client on the witness stand.
Sara Bloom and Reid Weingarten briefly discussed how the government refused to waive a jury trial, despite the defense agreeing to do so in the Stevens case. There was also a discussion about joint defense agreements, and John Dowd noted that when you put a joint defense agreement in writing that is the first act of mistrust.
A key word used throughout this panel by the government was simplify - one needs to make a white collar case understandable to the jury.
(esp)(Blogging from Miami)
The opening session of the ABA Annual White Collar Crime program was a back to basics sentencing program. This program was moderated by Jodi L. Avergun (Cadwalader) who did a wonderful job walking the panel participants through the basics of white collar sentencing. She noted that many feel the sentences in white collar cases have no relation to the actual crime charged and in this regard she noted that Congress, this year, directed the Commission to review some of the white collar crime sentences.
Eric A. Tirschwell (Kramer, Levin, Naftalis & Frankel LLP) provided a historical background on the development of the sentencing guidelines, from mandatory to advisory guidelines, with a specific focus on the fraud guidelines. He covered key cases like Booker, Gall, Kimbrough, and Rita and also the 3553 factors that play a focal part of the sentencing framework. Moving specifically to white collar cases, he explained the basics of the fraud table found in 2B1.1 of the guidelines and talked about several recent white collar cases like two of my favorites, Parris and Adelson. Tischwell noted that it is important to calculate the guidelines range as low as possible, argue for a variance, and maybe for a departure as well, explain why the sentence is "sufficient but not greater than necessary" (SBNGN) to satisfy sentencing purposes.
For anyone who has never heard a presentation by Hon. Beryl A. Howell, (U.S. District Court, District of Columbia) it’s a must do. She always comes with incredible statistics and information. This time was no different. Hon. Howell looked at what the Sentencing Commission is doing and what are the trends that we are seeing. She focused on three areas: 1) what is actually happening with white collar crime defendants around the country 2) why statistics are important 3) what is coming next.
She started by doing something that most folks providing statistics on white collar crime fail to do – she defined what would be included within this term. Then she presented some fascinating statistics. Of particular note is that white collar sentences are going up (average in 2007 was18 months; pre-2011 shows 24 months). This is not surprising since the average guideline minimum has also increased (average in 2007 was 23 months; pre-2011 shows 31 months). Yes, the number of white collar cases being sentenced within the guidelines has decreased (68.2% in 2007 and pre-2011 it’s 47.7%), but it is also important to note that the government sponsored below guidelines range has increased (13.7 in 2007 and pre-2011 it’s 22.9%). Judges sentencing above the guidelines went up slightly (2.2% in 2007 and pre-2011 it’s 2.4%) Some statistics on the plea to trial numbers were also provided by Hon. Howell. The preliminary 2011 cases showed that 93.5 % of the cases had a plea and 6.5 % went to trial. The average sentence for pleas in white collar cases was 21 months and those that went to trial had an average sentence of 62 months. But it should be noted that the average guideline minimum for plea cases was 29 months and it was 111 months for the cases that went to trial.
Andrew C. Lourie (Kobre & Kim) offered tips for sentencing. He stressed the importance of putting important points in on sentencing memo.
Edward C. Nucci (U.S. Attorneys' Office, Southern District of Florida) presented the prosecution perspective (of course not speaking on behalf of the government). He stressed the importance of post-Booker variances. He noted how a prosecutor can want to work out as much as possible prior to the actual hearing.
Karen A. Popp (Sidley Austin), the final speaker spoke about chapter eight of the guidelines -organizations. She stressed the importance of having an effective compliance program, and not just a paper program.
This was an incredible opening to the white collar crime conference. More blog posts will follow.
(esp)(blogging from Miami, Florida)
Wednesday, February 22, 2012
The NACDL White Collar Criminal Defense College at Stetson announces inaugural White Collar Criminal Defense Award recipients
The NACDL White Collar Criminal Defense College at Stetson has announced the recipients of the inaugural White Collar Criminal Defense Award. Jan Lawrence Handzlik and Janet Levine have both been selected by the NACDL White Collar Criminal Defense College advisory board to receive the award, which honors individuals who have made a profound impact on the field of white collar criminal defense advocacy. Read more here.