Thursday, March 15, 2012
In the interest of fairness, here are the responses of the federal prosecutors mentioned in the Schuelke-Shields Report. Submission of Brenda K. Morris, Submission of Edward P. Sullivan, Submission of James A. Goeke, Submission of Joseph W. Bottini, Submission of William M. Welch III, Submission on behalf of Nicholas A. Marsh.
Mr. Goeke also submitted his own separate appendix. Here it is. James A. Goeke Appendix.
Wednesday, February 8, 2012
One of the supposed hallmarks of the American criminal justice system is the prudent exercise of prosecutorial discretion. But prosecutorial discretion, even when it works, is a blessing and a curse. A blessing, because it allows for the flexibility and compromise without which most systems, even well-constructed ones, cannot function. A curse, because liberty should not depend upon the the character and wisdom of the person temporarily wielding power.
The U.S. Attorney's Office for the Central District of California has decided not to prosecute Lance Armstrong. An announcement to that effect was made last Friday. The L.A. Times story is here. A good Washington Post piece is here. Today's Wall Street Journal discusses the declination and a potential future probe of of improper leaks related to the case. (An internal investigation of some kind appears to be warranted given the massive leaking that has occurred.) According to the WSJ, the declination decision by U.S. Attorney Andre Birotte and his top aides went against the recommendation of the two line AUSAs handling the case. Maybe, but take it with a grain of salt. News stories about the internal machinations of prosecution teams often get it wrong.
Based on what I know about the case, the decision to decline appears to have been a no-brainer. Recent federal prosecutions involving alleged drug use by star athletes have expended enormous sums of money with mixed or poor results. In the Armstrong matter, the doping, if it occurred, was not itself a federal crime. Prosecutors would have been peddling a wire fraud theory under which Armstrong allegedly defrauded team sponsors by intentionally violating a contractual obligation to avoid improper drug use. Not very sexy. Twelve typical American jurors might well wonder at the start of such a case, "Why are we even here?" Finally, Armstrong is enormously popular and has a sterling defense team with unlimited resources.
The U.S. Anti-Doping Agency (USADA) vows to continue its investigation, accurately noting that its "job is to protect clean sport rather than enforce specific criminal laws." But USADA wants the grand jury materials. This would be a travesty, and is unlikely to happen. Federal grand jury materials are presumptively secret by law for good reason. Don't count on a federal court sanctioning transfer of grand jury materials to an agency like USADA.
In other declination news, the DOJ attorneys prosecuting the Gabon sting case have informed U.S. District Judge Richard Leon that DOJ is considering dropping all future prosecutions. A decision will be made by February 21. The BLT piece is here. Full disclosure: I briefly represented one of the defendants, and considered representing another of the defendants, neither of whom has gone to trial. My comments here are based on the public record. The two cases brought to date have resulted in three acquittals and two hung juries. Nobody going to trial has been convicted in what DOJ thought was a sure win. Whatever merit there was in initially bringing the case, reconsideration is in order. The two trials to date have revealed a number of weaknesses. First, this was a sting--a crime engineered by the U.S. Government. Second, the informant who helped orchestrate it was far more compromised than the typical informant in a white collar case. Third, in a key tape recorded conversation between that informant and one of the defendants, the defendant seeks to back out of the alleged unlawful transaction, but the informant reels the defendant back in by telling him that attorneys have approved the deal. Fourth, the inherent ambiguities and weaknesses in the FCPA itself.
If there has been a benefit to the Gabon FCPA prosecution it is this--it has taught the white collar defense bar that FCPA cases can be fought and won and, presumably, has taught DOJ that FCPA cases aren't as easy to win as they first appear.
February 8, 2012 in Celebrities, Corruption, Current Affairs, FCPA, Fraud, Government Reports, Grand Jury, Investigations, Media, Prosecutions, Prosecutors, Sports, Statutes | Permalink | Comments (0) | TrackBack (0)
Saturday, February 4, 2012
Last week, after President Obama announced a purportedly new initiative, see here and here, to combat fraud, government law enforcement officials, criticized for their lack of activity, promised action in the very near future. It is not clear whether the indictment returned Wednesday in the Southern District of New York for crimes committed four years ago is the action referred to. It certainly is not an earth-shattering case.
On Wednesday, three former Credit Suisse traders were indicted for inflating the worth of collateralized debt obligations (CDOs) to avoid recognition of market losses and thereby increase their bonuses. See here.
The CDOs consisted of pooled, presumably at least in part subprime, mortgages that were sold to investors in packages by presumably reputable institutions with high ratings provided by presumably reputable credit agencies. The presence of large amounts of overvalued CDOs in firm inventories is considered by some a major cause of the financial crisis.
Unlike securities such as listed stocks, there was no liquid market for these mortgage securities and therefore no easily ascertainable market value. Some financial firms were hesitant to mark down these failing obligations because it would considerably decrease reported earnings. Here, it is alleged -- and two of the three indicted have pleaded guilty -- that the traders knowingly concealed the loss in value and secured a bogus evaluation from a friendly small investment bank in order to support the inflated value of the securities. The overvaluation -- or failure to recognize the loss -- resulted in increased compensation for the traders, whose year-end bonuses were based considerably on the profits of their groups.
This case is interesting for several reasons. It is one of the relatively few brought so far that concern alleged criminal wrongdoing after the financial crisis arose. Most previous criminal prosecutions involving failed mortgages have focused on the origination of mortgages and comparatively small-time people such as aggressive mortgage brokers, perjurious buyers and conniving lawyers, and not their securitization.
It is also one of the few instances in which employees of a major financial institution have been prosecuted criminally in a case related to the financial crisis. Nonetheless, it would be a stretch to say that this overvaluation, discovered and corrected by Credit Suisse in days, had a major impact.
This is one of the rare criminal accusations, to my knowledge, involving mismarking or deliberately overvaluing illiquid assets in order to inflate profits. These valuations have a major effect on the profit and loss statements of financial institutions, including hedge funds, and the consequent bonuses or incentive compensation of traders and managers. False marking, often using evaluations by supposed experts or comparable institutions of the worth of securities with no easily-defined market value, is an area which deserves more governmental scrutiny and probably more governmental legal action.
Of course, care must be taken to distinguish deliberate falsity from good faith but erroneous evaluation in this uncertain area.
Monday, January 30, 2012
Virtually every presidential State of the Union speech, or its gubernatorial equivalent, calls for tougher criminal laws and/or new investigative resources. President Obama's address last week was no exception. The President called for the establishment of a new unit "to crack down on large scale fraud and protect people's investments." As blog editor Ellen S. Podgor wondered, see here, it was unclear how this unit would differ from the Financial Fraud Enforcement Task Force established in 2009. I too asked whether this purportedly new unit was anything other than a repackaged version.
The announcement of a new prosecutorial unit also was perhaps an unintended implicit admission that existing federal law enforcement agencies had been less than successful in dealing with serious alleged crimes which some believed had caused the financial crisis. Both Attorney General Eric Holder and SEC Enforcement Director Robert Khuzami defended their record, stating that not every mistake is a violation of law. Holder said, "We also have learned that behavior that is reckless or unethical is not necessarily criminal," a statement which (aside from leading me to ask why it had taken him so long to realize it) should be painted on the walls of every prosecutorial office.
The principal apparent structural difference between this unit, entitled the Unit on Mortgage Origination and Security Abuses ("UMOSA"), and the prior one is, besides its more focused jurisdiction, that this is a joint task force of both federal and state officials. One of its co-chairs -- albeit one of five, four being DOJ or SEC officials -- is New York State Attorney General Eric Schneiderman, who has shown his independence and aggressiveness toward Wall Street by pushing for stronger sanctions against financial institutions for robo-signing and other improprieties committed after the crisis arose.
Generally, joint federal-state task forces are a one-way street. The feds take the best criminal cases and leave the dregs to the state. One purported justification for such selection is that federal laws and rules of evidence make it easier for federal prosecutors to bring cases and win convictions. Schneiderman has indicated somewhat to the contrary -- that New York and other state laws give state attorneys general greater means to bring both civil and criminal prosecutions.
The idea of combining federal and state resources is generally a good one. Too often law enforcement agencies refuse to share information with other agencies, if at all, until they have determined the information was insufficient for them to act on, often too late for use by the other agencies. On the other hand, I fear that some task force constituents might attempt to make an end run around constitutional and statutory laws and rules, specificially Fed.R.Crim.Pro. 6(e), which, generally, as relevant here, prohibits disclosure of grand jury information to non-federal officials. Of particular concern is whether information secured by federal grand juries, much of which is through immunized testimony, will be provided for use by the states. Both Attorneys General Holder and Schneiderman seem aware of this restriction, but both appear to view it as an obstacle to overcome rather than a right to ensure. How scrupulous they will be in upholding the rule and spirit of grand jury secrecy will be seen.
Thursday, January 26, 2012
The L.A. Times reports here that Mitt Romney did not "explicitly disclose" certain foreign and offshore bank accounts on his required federal campaign disclosure forms. These same accounts were reported, however, to the IRS. Doesn't look like there's much to the story. There are different reporting requirements on campaign forms and IRS returns and some of the items revealed to the IRS were apparently listed at a higher level of generality on the campaign forms. Even assuming that there was some misreporting, one would be hard pressed to call it anything other than inadvertent.
Wednesday, November 30, 2011
Judge Emmet Sullivan's Order in relation to the Stevens case summarizing some of the findings of the special report by Hank Schuelke and William Shields was reported last week by my editor Ellen Podgor here and discussed in depth by my co-editor Solomon Wisenberg here. I add some thoughts on Brady violations in general.
First, as Mr. Wisenberg points out, few Brady violations are intentional. Although there are some rogue prosecutors who deliberately conceal what they know is information which would be beneficial to the defendant, the vast majority of Brady violators are well-meaning prosecutors who in their focus on their proof do not realize that certain information would be helpful to the defense.
Second, Brady is counterintuitive. Requiring a participant in any contest to provide information to his adversary which will decrease his chance of winning goes against the grain. Expecting a prosecutor who believes that such information is merely a means of enabling a guilty person to get off (since the material in question presumably has not changed the prosecutor's mind that the defendant is guilty beyond a reasonable doubt) to provide it to his opponent is even more problematical.
Third, Brady violations are not uncommon, although few are revealed. Since Brady violations are done in secret and the concealed evidence is unlikely ever to reach the light of day, most are undetectable. As Judge Sullivan's Order notes, many of the Brady violations in the Stevens case would never have been revealed but for the exhaustive investigation by the court's appointed investigators. And, this case, it should be remembered, involved a U.S. Senator represented by Brendan Sullivan, a superb, highly-respected and aggressive lawyer, and an outstanding law firm with considerable resources, not an overwhelmed court-appointed attorney with limited time and resources.
Fourth, as Mr. Wisenberg notes, prosecutors are rarely punished for Brady violations. Most judges either ignore the violations or gently chide the prosecutors. DOJ internal reviews of alleged prosecutorial misconduct are viewed by defense lawyers and many judges as whitewashes. Disciplinary committees historically have treated errant prosecutors gently in the few cases of prosecutorial misconduct of which they become aware, and prosecutions of prosecutors for obstruction of justice and the like for withholding evidence are virtually nonexistent.
Fifth, the legal standards for Brady disclosure are confused. Most prosecutors and judges think of Brady material as "exculpatory" material, that is, something that might have a significant impact on the determination of guilt, a standard that, to most prosecutors, eliminates all but a very few items of evidence. In fact, what should be disclosed is evidence "favorable" to the accused, a much broader category than "exculpatory." Additionally, many prosecutors believe that the standard used by reviewing courts to determine whether non-disclosure of Brady evidence requires reversal -- whether it is "material" -- is the proper standard to be used by a trial prosecutor in the initial disclose-or-not determination. "Materiality" in this context is essentially a "harmless error" standard of review used to decide whether the withheld evidence mandates reversal, not the standard to determine whether to disclose in the first instance. Just as a prosecutor's argument in summation may be improper, even if unlikely to result in reversal, concealment from the defense of favorable evidence is improper, even if not so serious that it later will be found "material" by an appellate court.
In sum, under current conditions, Brady just doesn't work. More explicit guidelines, as recently published by DOJ, will help, as would standing court orders making a violation contemptuous (as has seemingly not happened in Stevens) and stronger punishments for violations by judges, prosecutorial agencies, and disciplinary committees (and perhaps also a statute criminalizing deliberate and knowing Brady violations). But, in the end, the only real solution to Brady violations may just be, as Mr. Wisenberg suggests, open discovery in criminal cases.
Friday, November 25, 2011
"I don't know if there was a stench that developed in this case, but there was a bad odor at times, and so the issue that I'm inviting both sides to address is...whether either through a finding of due process violations or in the exercise of my supervisory power...something akin to the whole being greater than the sum of its parts justifies throwing out this conviction, because a lot of the parts that led up to this conviction are extremely troublesome." U.S. District Court Judge Howard Matz during 6-27-11 post-trial hearing.
The briefs are in and the hearing is set for this Tuesday at 10:00AM in the Lindsey Manufacturing FCPA prosecution. At issue is the Lindsey-Lee Defendants' Motion to Dismiss the Indictment With Prejudice Due to Repeated and Intentional Government Misconduct. A potential bad sign for the Government, as if it needed another one, is the Court's November 16th Order requiring the U.S. Attorney's Office to file certain Government and Court exhibits in the record by November 18. The Court had already publicly criticized the Government for its use and handling of some or all of these exhibits. The Government filed the exhibits in question on November 17, and they are now available through PACER.
Judge Matz has previously characterized the Government's investigation and prosecution of the case as "extraordinarily sloppy at best." He was apparently so troubled by the Government's actions that he generated and kept a post note during trial in order to keep track of them.
Wednesday, November 23, 2011
My colleague Ellen Podgor recently commented here on Judge Emmet Sullivan's 11-21-11 ORDER in In Re SPECIAL PROCEEDINGS, the ancillary proceedings initiated by Judge Sullivan to investigate the multiple Brady violations committed by DOJ prosecutors in U.S. v. Theodore Stevens. The ensuing investigation was conducted, on Judge Sullivan's behalf, by veteran DC lawyers Hank Schuelke and William Shields, who have now issued a report that is, I hope, only temporarily under seal.
It is obvious from reading his Order that Judge Sullivan is still outraged. That's a good thing. Until enough federal judges get hopping mad about systemic DOJ Brady violations, we will have no real legislative discovery reform at the federal level.
In addition to the points highlighted by Professor Podgor, Judge Sullivan's Order notes the following findings and conclusions by Schuelke and Shields:
1. "[T]he investigation and prosecution of Stevens were 'permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated his defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness.'"
2. "[A]t least some of the concealment was willful and intentional, and related to many of the issues raised by the defense during the course of the Stevens trial."
3. Schuelke and Shields "found evidence of concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed--at least to the Court and to the public--but for their exhaustive investigation."
4. Schuelke does not recommend criminal contempt proceedings, because "in order to prove criminal contempt beyond a reasonable doubt under 18 U.S.C. [Section] 401 (3), the contemnor must disobey an order that is sufficiently 'clear and unequivocal at the time it is issued'... [but] no such Order existed in this case. Rather, the Court accepted the repeated representations of the subject prosecutors that they were familiar with their discovery obligations, were complying with those obligations, and were proceeding in good faith."
5. "Mr. Schuelke also notes that '[i]t should go without saying that neither Judge Sullivan, nor any District Judge, should have to order the Government to comply with its constitutional obligations, let alone that he should feel compelled to craft such an order with a view toward a criminal contempt prosecution, anticipating its willful violation.'"
6. "Mr. Schuelke 'offers no opinion as to whether a prosecution for Obstruction of Justice under 18 U.S.C. [Section] 1503 might lie against one or more of the subject attorneys and might meet the standard enunciated in 9-27.220 of the Principles of Federal Prosecution.'"
It is clear that most or all of this Report is going to be publicly released. It will be interesting to compare it to DOJ OPR's report, assuming that DOJ decides to release it. Two attorneys for two of the prosecutors under scrutiny have already announced that OPR's report clears their respective clients. DOJ has a long history of ignoring the critical comments of federal judges. The latest example of this took place in reference to the prosecution of former Blackwater employees. Despite Judge Ricardo Urbina's scathing factual findings regarding the conduct and credibility of the original set of prosecutors, they were treated to a laudatory/fawning DOJ press release upon reassignment. Urbina, like Sullivan, is one of the most respected federal judges in the country and his factual findings were not questioned or disputed on appeal.
Some final thoughts.
1. For every Emmet Sullivan (or Ricardo Urbina or Howard Matz) there are 10 federal judges who unquestioningly accept the Government's representations regarding Brady issues, irrespective of non-frivolous matters brought to their attention by the defense bar.
2. The defense attorney has an obligation to ferret out Brady issues through the filing of detailed, fact-specific Brady motions closely tied to the formal allegations in the case.
3. We must rapidly move toward open discovery in the federal criminal system, with appropriate safeguards in place to protect witnesses where necessary. The presumption, however, must always be in favor of open discovery. Many states have gone this route without any disastrous consequences. It is appalling that civil litigants have substantially more access to discovery at the federal level than do people who are literally fighting for their liberty.
4. In the meantime, federal prosecutors must be relieved of the burden of determining whether exculpatory information is material. DOJ already recommends this in the Ogden Memo, but it should go one step further and require it. The rule should be: IF IT HURTS MY CASE IN ANY WAY, TURN IT OVER! When a man judges himself, the verdict is always in his favor. When a federal prosecutor, in the heat of trial or pretrial battle, is deciding whether exculpatory evidence is material, the verdict will too often be that it is not. Let's end this invitation to injustice.
5. Of course, federal prosecutors do not think like criminal defense attorneys. That's okay. We don't want them to! But this is the very reason why they cannot ultimately be trusted to make the determination of what is or is not exculpatory. The competent defense attorney headed to trial or sentencing is constantly thinking about anything that will help the defense. Prosecutors are not trained or inclined to do this. Even when they are trying to fulllfil their Brady obligations, AND THE VAST MAJORITY OF FEDERAL PROSECUTORS ARE TRYING TO DO THIS, they cannot be trusted to spot the issues. This difference in outlook/inclination/thought processes really comes to the fore during the period leading up to sentencing hearings, when the prosecutor looks at the defense attorney like a deer in the headlights when reminded of his/her obligation to provide any and all mitigating evidence!
6. Please. Let's have no more: "We understand our Brady obligations and intend to abide by them." Congress should pass a statute requiring some form of detention for any prosecutor who utters this bromide.
November 23, 2011 in Contempt, Corruption, Current Affairs, Government Reports, Investigations, Judicial Opinions, Legal Ethics, Media, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (4) | TrackBack (0)
Sunday, September 25, 2011
The Washington Post's Chris Cillizza thinks Solyndra had the worst week in Washington, because its CEO and CFO invoked the Fifth Amendment's Privilege Against Self-Incrimination in front of the House Energy and Commerce Committee. According to Cillizza, the silence of the executives "won't win them any allies in Washington." What allies? These guys already have bruises all over their bodies from where politicians have been touching them with eleven foot poles. Cillizza believes that their taking five "ensures that the probe into how Solyndra won the initial loan in 2009...will not only continue...but grow." This is silly. A vigorous criminal investigation is already assured. If the execs had talked they only would have made the DOJ's job easier.
The first place a bank looks when a big loan goes bad is the borrower's application, including the financial statement. For decades the DOJ has operated as a criminal collection agency for our country's financial institutions. It only gets worse if the loan, in this case about a half billion, is guaranteed by Uncle Sugar. Add in the DC gang mentality attendant upon what has become a political scandal and you would have to be a cretin to open yourself up to possible charges of false statements, perjury, or obstruction of justice. This one was a no-brainer. Kudos to the executives and their attorneys for not being idiots.
Sunday, September 4, 2011
On Friday, U.S. District Court Judge Reggie Walton denied William Roger Clemens’ Motion to Prohibit Retrial and Dismiss the Indictment. If the New York Times is to be believed, Walton thinks that prosecutors “blatantly disregarded” his order barring testimony by Laura Pettitte. But the judge also ruled that “the current state of the law” prevents him from barring a second trial, despite the Constitution’s Double Jeopardy Clause. I respectfully disagree.
The leading case is Oregon v. Kennedy, decided by the U.S. Supreme Court in 1982. In his majority opinion in Oregon v. Kennedy, Justice Rehnquist held that when a defendant successfully moves for a mistrial the Double Jeopardy Clause will not prevent a retrial unless the prosecutorial conduct giving rise to the successful motion for mistrial was intended to provoke the defense into moving for mistrial. Got that?
Rehnquist pointed out that when a prosecutor goads the defendant into moving for a mistrial, “the defendant’s valued right to complete his trial before the first jury would be a hollow shell if the inevitable motion for mistrial were held to prevent a later invocation of the bar of double jeopardy in all circumstances.” Rehnquist rejected a broader standard based on prosecutorial overreaching:
“The difficulty with the more general standards which would permit a broader exception than one merely based on intent is that they offer virtually no standards for their application. Every act on the part of a rational prosecutor during a trial is designed to ‘prejudice’ the defendant by placing before the judge or jury evidence leading to a finding of his guilt. Given the complexity of the rules of evidence, it will be a rare trial of any complexity in which some proffered evidence by the prosecutor or by the defendant's attorney will not be found objectionable by the trial court. Most such objections are undoubtedly curable by simply refusing to allow the proffered evidence to be admitted, or in the case of a particular line of inquiry taken by counsel with a witness, by an admonition to desist from a particular line of inquiry.”
In contrast, “a standard that examines the intent of the prosecutor, though certainly not entirely free from practical difficulties, is a manageable standard to apply. It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” Commentators and practitioners have not focused enough on this passage.
It is a commonplace in criminal law, both state and federal, that intent cannot always be established by direct evidence, but instead must often be inferred from circumstantial evidence. For example, the Third Circuit’s standard jury instruction on “Required State of Mind-Intentionally-Knowingly-Willfully” teaches that:
“Often the state of mind [intent, knowledge, willfulness, or recklessness] with which a person acts at any given time cannot be proved directly, because one cannot read another person’s mind and tell what he or she is thinking. However, (name’s) state of mind can be proved indirectly from the surrounding circumstances. Thus, to determine (name’s) state of mind (what (name) intended or knew) at a particular time, you may consider evidence about what (name) said, what (name) did and failed to do, how (name) acted, and all the other facts and circumstances shown by the evidence that may prove what was in (name's) mind at that time. It is entirely up to you to decide what the evidence presented during this trial proves, or fails to prove, about (name’s) state of mind.”
Every federal circuit, including the D.C. Circuit, has a similar instruction.
The Third Circuit instruction on “Intentionally” states that:
“The offense(s) of (state offense or offenses that include intentionally or with intent) charged in the indictment requires that the government prove that (name of defendant) acted “intentionally” [“with intent”] with respect to an (certain) element(s) of the offense(s). This means that the government must prove beyond a reasonable doubt either that (1) it was (name’s) conscious desire or purpose to act in a certain way or to cause a certain result, or that (2) (name) knew that (he) (she) was acting in that way or would be practically certain to cause that result.
In deciding whether (name) acted “intentionally” [“with intent”], you may consider evidence about what (name) said, what (name) did and failed to do, how (name) acted, and all the other facts and circumstances shown by the evidence that may prove what was in (name)’s mind at that time.”
Every federal circuit, including the D.C. Circuit, has a similar instruction.
In this regard, Justice Powell’s concurrence in Oregon v. Kennedy is also instructive. Powell noted that, because subjective intent is often unknowable, “a court - in considering a double jeopardy motion - should rely primarily upon the objective facts and circumstances of the particular case.” One of those objective facts and circumstances is whether there was a “sequence of overreaching” prior to the particular prosecutorial error which necessitated a mistrial.
Thus, Judge Walton, in determining whether the Government intended to provoke a mistrial was free under the law to fully examine all of the circumstances surrounding the Government’s violation of his order.
Every federal circuit also has a “Willful Blindness” instruction. The Third Circuit’s is typical. It states in part that:
“To find (name) guilty of (state the offense), you must find that the government proved beyond a reasonable doubt that (name) knew (state the fact or circumstance, knowledge of which is required for the offense charged). In this case, there is a question whether (name) knew (state the fact or circumstance, knowledge of which is required for the offense). When, as in this case, knowledge of a particular fact or circumstance is an essential part of the offense charged, the government may prove that (name) knew of that fact or circumstance if the evidence proves beyond a reasonable doubt that (name) deliberately closed (his) (her) eyes to what would otherwise have been obvious to (him) (her).
No one can avoid responsibility for a crime by deliberately ignoring what is obvious. Thus, you may find that (name) knew (state the fact or circumstance, knowledge of which is required for the offense charged) based on evidence which proves that: (1) (name) was aware of a high probability of this (fact) (circumstance), and (2) (name) consciously and deliberately tried to avoid learning about this (fact) (circumstance).”
This is also known as the “Ostrich Instruction.” A defendant cannot hide his head in the sand about the facts in front of him. Let’s apply the concept to baseball.
When a pitcher throws a brushback pitch to a batter’s head, intending to intimidate the batter, he “knows” there is a possibility that the batter will be hit and injured. When that same pitcher throws a 100 mile an hour brushback pitch to the batter’s head, he “knows” that if the batter is hit, serious injury may result. But when that same pitcher has terrible control problems, is in a bad mood, and throws a 100 mile an hour brushback pitch to the batter’s head, he “knows” there is a high probability that the batter will be hit by the pitch and seriously injured.
Judge Walton was also free to apply the willful blindness concept, regularly applied by prosecutors and courts to convict criminal defendants, to the Government’s actions in the Clemens case.
It was the Government’s playing of the Elijah Cummings videotape to the jury on July 14, 2011, that provoked Judge Walton’s wrath and the defense’s reluctant, but successful, mistrial motion. Representative Cummings, in the course of cross-examining Roger Clemens before Congress, repeatedly mentioned Laura Pettitte’s affidavit. But Judge Walton had ruled this affidavit to be inadmissible. By playing the Cummings tape, the Government effectively snuck the affidavit into evidence through the back door. In trying to justify its use of the Cummings videotape on July 14, the Government never once said that it had made a mistake. Instead, AUSA Durham argued that “[t]here was no intention to run afoul of any Court ruling,” that the defense had possessed the videotape for months, and that the tape was in fact admissible.
There is absolutely no question that the Government intended to play the Cummings videotape, despite the Court’s prior ruling regarding Laura Pettitte’s affidavit. The defense and several commentators have made this point and the record unequivocally supports it. Judge Walton agrees. The prosecutors were deliberately playing it as close to the line as they could, hoping that they could get away with the Cummings videotape. They were throwing a brushback pitch at 100 miles an hour, but they were not paying enough attention to the umpire behind the plate.
And this was not an isolated incident. In determining whether the prosecutors intended to provoke a mistrial motion we are entitled to look at all of the facts and circumstances, including whether there was a “sequence of overreaching,” whether the prosecutors were “acting in [a] way [that] would be practically certain to cause” a mistrial motion, and whether the prosecutors were willfully blind to the likelihood that their win-at-all-costs philosophy would result in a mistrial. The prosecutors knew they were up against two of the finest criminal defense attorneys in the country, Rusty Hardin and Michael Attanasio. The prosecutors were therefore on notice that any conduct in violation of the Court’s orders would not go unchallenged.
On the question of whether the prosecutor’s engaged in a “sequence of overreaching,” I believe that not enough detailed attention has been paid to the Government’s violation of a separate Court order during opening statements. Nor has enough attention been paid to the Government’s attempts to justify this additional violation.
Let us now pay some detailed attention to this separate violation.
When Roger Clemens’ attorneys looked at the Government’s witness list on June 10, 2011, they spotted the names of four men who were trainer Brian McNamee’s former clients. The potential witnesses were Andy Pettitte, Chuck Knoblauch, Mike Stanton, and Anthony Corso.
Eleven days later, Clemens filed Defendant’s Motion in Limine and Memorandum of Law (1 of 2) to Preclude Introduction of Other Witness Evidence Concerning Dealings and Discussions With Brian McNamee. In the introductory paragraph of his motion, Clemens attacked the prosecutorial strategy of guilt by association, noted that “[g]uilt under our system of government is personal” and that “inference[s] of guilt drawn by testimony regarding individuals other than defendant[s]” had been rejected by the D.C. Circuit, and sought “to preclude such improper evidence in all respects.”
Specifically, in the rest of his motion/memorandum, Clemens sought to exclude “evidence or argument that Brian McNamee provided or injected other witnesses with steroids or HGH” and “evidence or argument that Brian McNamee’s accounts of dealings with other witnesses are confirmed or consistent.”
Recognizing that “the evidence offered through Mr. Pettitte is so likely to be interrelated to the case against and in defense of Mr. Clemens that precluding it in its entirety would be impractical,” Clemens nevertheless sought to preclude the Government “from making improper argument that Brian McNamee provided or injected Andy Pettitte with HGH and told the truth about it.”
The Government vigorously opposed Clemens’ motion in an 11 page Opposition Brief. In footnote 5 of its brief, the Government stated that “[f]ormer players Pettitte, Knoblauch, Stanton, and Segui will also testify as to other relevant facts that defendant’s motion does not encompass. This includes but is not limited to: the reasons why players chose to use these drugs, and (2) team practices with respect to the dispensation of prescription drugs such as lidocaine and vitamin B12.”
This is an odd comment to hide in a footnote, particularly given Clemens’ stated desire to exclude guilt by association evidence “in all respects.”
Fast forward two weeks to the July 5, 2011, motions hearing. Judge Walton was obviously concerned about the prejudicial impact of testimony that McNamee had injected other players with illegal substances and told the truth about it. Stating his understanding that Clemens’ defense would be one of unknowing injection with such substances, Judge Walton wondered “how evidence that other individuals were getting these substances from Mr. McNamee and they knew they were getting, how that somehow could be imputed to Mr. Clemens. But I’ll hear from the government as to why this evidence is relevant, unless in some way the defense puts it in issue.”
After listening to arguments, the Court was unmoved. “I can understand why you’d want to do it, but my concern is that if his position is that yes, McNamee was giving me injections, but he was injecting me with what I thought were vitamins and other items that are not banned, the concern I would have is that if you bring in that evidence showing that these individuals were getting these substances from Mr. McNamee and they knew [what] they were getting, that the jury may say well, if they knew what they were getting from McNamee, then why wouldn’t Clemens also know that he was getting the same thing. And that doesn’t necessarily compute. That may not be true. And so, I think there is a significant potential for him being unduly prejudiced by that evidence coming in.”
Judge Walton agreed to have his law clerk look at a D.C. Circuit case that the Government mentioned in its oral presentation and said that he would come back to the issue. But the Government immediately started reiterating its position, arguing its right “to rebut any notion that Mr. Clemens somehow thought that what McNamee was giving him was B-12 when, in fact, it wasn’t. This is also a central issue of proof in the Government’s case.”
Judge Walton said, “Okay. I’ll look at the case. I’m just still having some real problems with this because I can see how even with a cautionary instruction, assuming I could craft one that would be intelligible to the jury, I could see how they could still potentially misuse that evidence. I mean, I don’t know. I mean, I use to get cortisone shots when I was playing football in college. And I had to rely upon what the trainer was giving me. And I would not want to be held responsible for having done something inappropriate based upon what that trainer was giving to other people. And that’s the concern that I have.”
The Court then moved onto other admissibility issues, including whether the Government could put on evidence that Andy Pettitte contemporaneously repeated his conversation with Clemens to his wife Laura Pettitte. The Court also ruled that this evidence was inadmissible, as long as Clemens was only arguing that Andy Pettitte misheard, rather than misremembered, the conversation with Clemens. If Andy Pettitte misheard Clemens admit to illegal steroid injections, his repetition of the conversation to Mrs. Pettitte does not rebut anything. The defense confirmed that this was its position.
Later the Court returned, as promised, to the issue of McNamee’s dealings with other players. “I fully appreciate that the jury is going to have to assess Mr. McNamee’s credibility, and that his credibility is going to be seriously attacked by the defense. But I don’t think, at least at this point, that the mere fact that they are going to seriously attack his credibility necessarily opens the door to bring in evidence regarding Mr. McNamee’s dealing with other players. Because as I say, my main concern is that if Mr. Clemens’ position, and I understand it is at least in part his position that he did not know what he was receiving, it seems to me that there’s a real danger, that the jury may say, well, if they all knew, and that’s especially I guess true in reference to players who are also on the same team, that why wouldn’t Mr. Clemens know? And I think that would be a problem, for them to in some way use the evidence regarding what he was doing with these other players to impute knowledge on the part [of] Mr. Clemens. But I’ll reserve a final ruling until I see what transpires during the trial. And if somehow I feel that the door has been opened, I may be inclined to change my position. But my tentative position is that the evidence is not going to come in.”
What happened next in the motions hearing is, to me, very important. The Court asked whether there were other matters to take up. Rusty Hardin said “I don’t believe so from the defense, Your Honor.” But the Government had something else to say.
Without specifically referencing footnote 5 of the Government’s Opposition Brief, AUSA Durham told the Court that “[t]he other players, as we point out in the motion, there are areas of testimony [that] are not the subject of the defense motion in limine that we set forth and proffer in our opposition pleading. I just want to make sure that I don’t run afoul of any of the Court’s ruling by mentioning that there were other players who may testify in this trial, who played for the Yankees during this time period.”
Judge Walton, clearly not remembering footnote 5, sought clarification: “That’s all you’re going to say?”
Durham responded: “Yes, pretty much. Yes.”
Hardin said: “No problem.”
Judge Walton said: “Okay. And other matters?”
And the motions hearing ended.
Three things should have been crystal clear after the motions hearing and the foregoing exchange.
1. The Government had lost two crucial evidentiary battles as a result of the defense motions in limine.
2. The Government would not be allowed to mention to the jury, without leave of Court, any drug use by other players who were Clemens’ contemporaries, particularly his Yankee contemporaries.
3. The Government would be allowed tell the jurors during opening statement that “there were other players who may testify in this trial who played for the Yankees during this time period.”
But that is all the Government would be allowed to say on this topic.
Fast forward eight days to opening statements on July 13, 2011.
AUSA Durham told the jury that four of the players named in the Mitchell Report “are willing to testify as witnesses in this trial. Three of those players…Mr. Pettitte, Chuck Knoblauch and Mike Stanton, these players all played for the New York Yankees in 2000 and 2001….Each of these players, Mr. Pettitte, Mr. Knoblauch and Mr. Stanton played for the New York Yankees in 2001 and 2001. And they’ll tell you, ladies and gentlemen, each one of them will tell you that they used the drug human growth hormone, this drug that’s injected into the abdomen with a small insulin needle. And they’ll tell you why they used it, and they used it to recover from injuries. They used it because there was a lot of pressure in Major League Baseball to play and perform. And at the high levels, there was great financial reward and great recognition.”
Defense counsel Hardin interrupted and asked to approach the bench. At the bench, Hardin reminded the Court of its ruling on the motion in limine.
AUSA Durham responded: “This is what I clarified with the Court, and I just want to make sure. When I stood at the plate, I said I want to make sure. I want to follow the Court’s ruling that I would refer to players, that players would testify as to why they used these substances.” This was, of course, a false statement. It may not have been intentionally false, but it was blatantly false. Durham continued, “I am not going to go into where they got them, how they got them or any of that. But I don’t believe this runs afoul at all of the Court’s ruling.”
Judge Walton said: “And that’s relevant for what purpose?”
Mr. Durham: “Why he would use these drugs. These are teammates of him. They play at the same time on the same team. It explains why in the world this man would choose to use these drugs.”
Mr. Hardin: “Not a one of them are going to say anything about Roger Clemens, even if it was allowed, using steroids. What they’re allowed to imply through this is that Roger Clemens must have used steroids because these players found it helped them. That’s incredibly irrelevant and prejudicial.”
Judge Walton, trusting the prosecutor and apparently having forgotten Durham’s precise words on July 5, said “I don’t doubt that you said what you said earlier, but I did not really rule ultimately on the issue as to whether this could come in under any circumstances. And I clearly had said it couldn’t come in for the purpose of suggesting that, because they knew what they were using, that Mr. Clemens would have known what he was using.” Walton told Durham “I have not given the leeway for this information to come in.” Walton instructed the jury to disregard Durham’s comments about other players using drugs.
The next day, after the Government played the Cummings videotape in violation of the Court’s order, Rusty Hardin reminded Judge Walton of this earlier violation:
“Well, let me mention, the problem we have is, is this is the second, so there must be a total misunderstanding on the government's part as to their obligations, because this happened during opening statement, too. I had to object during opening statement to a mentioning of other players. The Court ruled and reminded them that that was a violation of the motion in limine.”
AUSA Durham did not want to revisit that issue, but offered to get a transcript:
“When I asked the Court, I don't want to run afoul of the Court's ruling, can the government mention other players with respect to and in connection with why they used the drug as opposed to whom they got it from. There is no bad faith on the part of the government here in trying to prove this case.”
Once again, this was an inaccurate representation of what transpired during the motions hearing, but presumably Durham had not had an opportunity to review the motions hearing transcript.
Well after the mistrial, in its August 19, 2011, written response to Clemens’ motion to bar retrial on double jeopardy grounds, the Government again discussed its effort in the July 5 motions hearing to not “run afoul of any of the Court’s ruling.” But the Government did not quote in full, or in proper sequence, from AUSA Durham’s actual exchange with Hardin and the Court. Instead, the Government claimed that on July 5 it had “asked the Court for clarification of the scope of its tentative ruling,” and was clearly making “a reference to footnote five of the government’s opposition.” According to the Government, “defense counsel appeared to indicate that he had no objection to an opening statement reference to HGH abuse by other Major League players.”
This is a material misstatement of the record. And, unlike AUSA Durham’s mischaracterizations of the record in the heat of trial on July 13 and July 14, the Government had ample time--over a month--to carefully consider its words.
Judge Walton could have considered the Government’s continuing misrepresentation of the July 5 record in deciding whether the prosecutors intentionally provoked a mistrial. He could have considered all of the factors I have been discussing and fashioned an opinion with a good chance of surviving on appeal. After all, he does not believe that the seasoned prosecutors made a mistake. He believes that they deliberately violated his orders.
I do not profess to know exactly why Judge Walton ruled for the Government. By all accounts he is a fair, straightforward and intelligent jurist. [Full disclosure: I had a hearing in front of Judge Walton on Friday and did not receive the precise result I asked for.] Perhaps we will learn more if he issues a written opinion. I have no reason to think that his stated reason, as reported in the press, is not the real one.
Hardin and Attanasio are considering an interlocutory appeal. This would set up a difficult challenge. Perhaps they can argue that Judge Walton incorrectly thought his hands were tied, because he had no direct explicit proof of prosecutorial intent.
One thing is clear from Judge Walton’s comments during the motions hearing and from his actions during the first trial. He is determined to give Mr. Clemens a fair trial—to be, in the words of Chief Justice Roberts, an impartial umpire. And the Government will now be extremely limited in what it can put before the jury. Mr. Clemens has sought vindication, ever since he voluntary appeared before Congress to deny charges of illegal use of performance enhancing drugs. An acquittal by a jury of his peers is the most complete form of vindication that he will be able to achieve. Maybe he will get it, with Judge Walton behind the plate.
Friday, September 2, 2011
CNN has the story here. Judge Reggie Walton apparently blasted prosecutors, accusing them of deliberately violating his rulings during the truncated first trial. But Judge Walton believes that governing law prevents him from barring retrial on Double Jeopardy grounds. The leading Supreme Court case is Oregon v. Kennedy, 459 U.S. 812 (1982), which holds that a mistrial granted upon the request of a defendant, even if necessitated by government misconduct, only bars retrial on Double Jeopardy grounds if the prosecution intended to goad the defendant into moving for a mistrial.
September 2, 2011 in Celebrities, Current Affairs, Defense Counsel, Investigations, Judicial Opinions, Legal Ethics, News, Obstruction, Perjury, Prosecutions, Prosecutors | Permalink | Comments (1) | TrackBack (0)
Friday, August 12, 2011
SEC's Dodd-Frank Whistleblower Regulations Take Effect Today. Corporate America Expects More FCPA Woes.
Politico has a story about it here. The new regs implement Section 21F of the Dodd-Frank Act, which authorizes the SEC to award 10 to 30 percent of the monetary sanctions it recovers in a given case to a qualified whistleblower. What seems to most annoy the business community about the implementing regs is the SEC's insistence that whistleblowers are under no obligation to make use of a company's internal complaint procedures before running to the SEC. But the regs do say that an employee who goes through internal company whistleblower protocols is eligible for a Dodd-Frank whistleblower award if his/her employer subsequently self-reports to the SEC, based on the whistleblower's complaint, and a recovery is had. Further, an employee has a 120-day grace period after whistleblowing to his/her company, within which to bring his/her complaint to the SEC. Finally, in determining the amount of a whistleblower reward, the SEC will consider whether the whistleblower made use of his/her internal company procedures. The new regs contain enhanced anti-retaliation provisions as well, which prohibit direct or indirect retaliation for making whistleblower complaints to the SEC and other government entities.
There is an inherent tension between the anti-retaliation provisions and the SEC's and DOJ's often-emphasized warnings to companies that they should have vigorous and authentic internal whistleblower procedures. What if a company's pre-existing compliance policy requires the prompt internal reporting of whistleblower complaints? Can a company punish an employee who ignores such a provision and goes straight to the SEC? What if the employee declines to internally report, even after going to the SEC, because he/she feels that the company procedure is a sham? My guess is that such punishments will occur and that they will be deemed to run afoul of the anti-retaliation provisions. The retaliatory response is an instinctiual, persistent, and virtually universal impulse. It is really hard to eradicate.
Monday, July 25, 2011
This weekend saw something unusual in the nation's elite newspapers. Three detailed stories about white collar crime issues.
WSJ Weekend carried this in-depth and outstanding piece by Gary Fields and John R. Emshwiller about overcriminalization--the proliferation of criminal statutes, particularly at the federal level, covering more and more aspects of everyday life. The article also focused on Congress's increasing enactment of statutes that dispense with any meaningful mens rea element. Although both of these problems have been around for years, and the article makes no effort to treat the matter historically, it does a generally good job of framing the issues.
Fields and Emshwiller detail how the Idaho U.S. Attorney's Office successfully prosecuted a father and son for attempting "to take artifacts off federal land without a permit" under the Archaeological Resources Protection Act of 1979. They were out camping and looking for arrowheads, which they failed to find, and apparently did not know that the law existed. According to Fields and Emshwiller, the Act "doesn't require criminal intent." This is true of the Act on its face, but the father and son clearly intended to search for arrowheads and did not have a permit. This case is really more an example of obscure administrative criminal statutes that no normal person can be expected to master. Hence it is terribly unfair in such circumstances to apply the old saw that "ignorance of the law is no excuse." But don't tell that to Idaho U.S. Attorney Wendy Olson. She will just answer that "[f]olks do need to pay attention to where they are."
The article also details how Olson's office convicted an inventor for abandoning covered chemicals under the Resource Conservation and Recovery Act. This was after the inventor had been acquitted in an Alaskan federal court for illegally shipping the same chemicals without proper labeling. Would this have been the proper occasion for the exercise of prosecutorial discretion? Not a chance. According to Ms. Olson, her "office will continue to aggressively prosecute" such crimes.
Meanwhile, on Friday, the Washington Post's David Hilzenrath wrote a story with the headline, Quandary for U.S. companies: Whom to Bribe? The piece purported to give both sides of the FCPA debate, but I found it slanted towards the DOJ view. While discussing the recent convictions in the Lindsey Manufacturing case, Hilzenrath never mentions that the Lindsey guilty verdicts are in serious doubt post-trial, with further briefing due from the parties and a federal district judge who has questioned the case and is angry at the government. Even more amazingly, Hilzenrath nowhere references the recently concluded 10-week jury trial in D.C. against the first wave of defendants in DOJ's heavily publicized African Sting FCPA bribery case. The trial resulted in a hung jury mistrial. According to one of the defense attorneys, Todd Foster, the main theme of the defense was that the FCPA was too complicated to be understood by the defendants. Yet this trial, occurring right under the Post's nose, was not deemed worthy of mention. Hat tip to Todd for bringing the article to my attention.
Finally, the Sunday New York Times focuses on Murdoch's Unlikely Ally, former New York City schools chancellor and DOJ Antitrust Chief Joel Klein, in an article by Jeremy Peters, Michael Barbaro, and Javier Hernandez. It is a very good story and remarkable for its focus on the mechanics of News Corporation's internal investigation. Instead of following the "best practice" and hiring an outside law firm to conduct the investigation and report to an audit or special committee controlled by independent outsiders, News Corporation is employing something of a hybrid. It has appointed Lord Anthony Grabiner as the internal investigation's "Independent Chairman." But Grabiner sat behind, and presumably advised, the Murdochs during last week's parliamentary testimony. Grabiner will report to Klein, a News Corporation executive and trusted Murdoch adviser who also sat behind the Murdochs. Klein will report to Viet Dinh, "an independent director on the News Corporation board," for whom I have enormous respect. The article quotes University of Delaware corporate governance expert Charles Elson to the effect that this arrangement "is not standard practice." It may be more standard than Professor Elson realizes. It is obviously not the best practice for ensuring a truly independent investigation. Virtually by definition, there is no way that such an investigation can be wholly and truly independent.
By the way, even an investigation conducted by outside counsel and reporting to the audit committee (or a specially created independent committee) may only be independent up to a point. Let's say that the investigation is completed and outside counsel submits a report to the audit or independent committee. What happens next? Is the Board of Directors required to follow the recommendations of the independent committee? If not, then what is the point of the process in the first place? But that is a topic for another day.
Saturday, May 14, 2011
Here is yesterday's opinion from the D.C.Circuit in United States v. David Safavian. The former Jack Abramoff friend and colleague was convicted upon retrial, after the appellate court threw out the original convictions on various grounds. The primary contention in the latest appeal was vindictive prosecution, as new charges were added after the remand. The Court held that the trial court did not abuse its discretion in finding that the government added the new charges to counter Safavian's literal truth defense. Safavian's alleged felonious conduct was incredibly petty and minor in nature. The prosecution was a tremendous waste of government resources.
Wednesday, May 11, 2011
Read all about it. Here is Katya Wachtel's report for businessinsider.com. Carrie Johnson of NPR's All Things Considered discusses the deterrent effect of Wall Street wiretaps in Wiretaps: Not Just For Mob Bosses Anymore, with a quote thrown in from yours truly.
Saturday, April 23, 2011
The federal criminal trial involving former GlaxoSmithKline ("GSK") Vice President and Associate General Counsel Lauren Stevens commences this Tuesday in Greenbelt, Maryland. When I first read the Indictment, without knowing anything else about the facts, it struck me that the government may have overcharged. That is probably not a good sign for the feds, since the Stevens charging instrument is a classic one-sided speaking Indictment that seeks to put the United States' case in the best possible light.
The crux of the prosecution theory is that Stevens, who headed up a team of inside and outside GSK counsel responding to an FDA inquiry, withheld information about off-label marketing of Wellbutrin. Specifically, Stevens allegedly learned that several doctors, paid by GSK and speaking at GSK-sponsored events, promoted off-label (weight-loss) use of the drug. GSK's responses were part of a voluntary production pursuant to a written request from the FDA's Division of Drug Marketing, Advertising, and Communications ("DDMAC"). Stevens allegedly agreed, orally and in writing, to provide DDMA with "materials and documents presented at GSK-sponsored promotional programs, even if not created by, or under the custody or control of GSK." But, according to the Indictment, Stevens knowingly failed to produce numerous off-label promotional and presentation materials, provided to GSK by the doctors in question, with intent to obstruct an FDA proceeding. Rather than focusing entirely or primarily on this failure to produce, the Indictment lumps in many other broad statements contained in Stevens' various cover letters to the government. It seems to me that at least some of these statements are open to differing interpretations. Perhaps the government should have more narrowly honed in on the failure to turn over the presentation/promotional materials.
Part of Stevens' defense will entail her purported reliance on the advice of outside counsel in sending GSK's written responses to the FDA. The original Indictment was thrown out by Judge Roger Titus, because federal prosecutors incorrectly instructed the grand jury that reliance on the advice of counsel is only an affirmative defense. In fact, good faith reliance on advice of counsel negates the specific intent element under the federal obstruction and false statement statutes at issue in the trial.
This prosecution should strike terror into the hearts of inside and outside counsel throughout corporate America. Of particular note is that the FDA inquiry into off-label Wellbutrin marketing did not involve a compelled production and was not even quasi-criminal in nature.
Attached for our readers' benefit are some documents setting out the government's case and what are likely to be key portions of Ms. Stevens' defense.
April 23, 2011 in Arthur Andersen, Corruption, Current Affairs, Defense Counsel, Fraud, Grand Jury, Judicial Opinions, Legal Ethics, Obstruction, Prosecutions, Statutes | Permalink | Comments (0) | TrackBack (0)
Monday, January 17, 2011
Boo hoo. The Washington Post has a good article here, by Jerry Markon and R. Jeffrey Smith, about the Constitution's Speech and Debate Clause, and the various ways in which it is hampering DOJ corruption probes. Unfortunately, the article implies that certain high-profile cases were dropped primarily or solely because of Speech and Debate. This unfairly maligns the named lawmakers and/or former lawmakers in question, and makes it seem that they were let off on a technicality. That damned technical Constitution--always getting in DOJ's way. In fact, the very idea that DOJ wiretapping of House members was, until recently, considered a legitimate and entirely appropriate law enforcement tool is a testament to how out of whack the balance of powers between the Legislative and Executive Branches has become. Congress finally woke up and smelled the coffee and, with an assist from the DC Circuit in U.S. v. Rayburn House Office Building, is resisting Exective Branch encroachment on its institutional powers.
Saturday, January 15, 2011
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.
Wednesday, January 12, 2011
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.
Friday, January 7, 2011
Okay, let me take off my white collar defense attorney hat and put on my former prosecutor hat for a minute. Call it my citizenship hat. Don't most of us want real, unadulterated big-time crooks to be investigated and, where appropriate, charged? Where are all the investigations and prosecutions of the accounting control fraud that caused one of the greatest recessions in U.S. history? You know, the current recession.
Back in the late 1980s, when the S&L Crisis hit and the Dallas-based S&L Task Force was formed, federal law enforcement officials quickly realized that, in many instances, colossal fraud had been committed by the very players who controlled the S&Ls. The S&L fraud was overwhelmingly based on sham transactions and sham accounting for those transactions. Massive resources were committed to investigating and prosecuting the S&L fraud. It was understood that the crooked players had hijacked their S&Ls and defrauded depositors and/or the FSLIC. This rather elementary distinction between the savings and loan as an institution and the fraudsters who controlled it was grasped by AUSAs and effectively conveyed to juries across the land.
Nothing like this is happening today with respect to the federal government’s investigation of the housing bubble, liars’ loans, and Wall Street's subprime lending scandal. The overwhelming number of investigations and prosecutions seem to be focused on piker fraudsters—corrupt individual borrowers or mortgage brokers. These cases are easy pickings, but do not get to the massive fraud that clearly permeated the entire financial system.
Professor William Black, of Keating Five fame, has written a scathing piece all about this for the Huffington Post. Here it is. Among Black's revelations? "During the current crisis the OCC and the OTS - combined - made zero criminal referrals." Astounding. These two agencies accounted for thousands of criminal referrals per year during the S&L Task Force years. More fundamentally, Black argues that today's federal prosecutorial authorities do not comprehend that individuals in control of an institution can have an incentive to engage in short-term fraud that enriches them individually while destroying the long-term prospects of the institution and the larger economy.
Nobody should be charged with a white collar crime unless the crime is serious and the prosecution believes in good faith that a jury will find guilt beyond a reasonable doubt. But how about a substantive investigative effort, including commitment of appropriate resources? Why are such huge resources being spent on dubious endeavors like insider trading and FCPA enforcement, while elite financial control fraud goes largely unaddressed? Professor Black's piece is highly recommended reading.