Sunday, May 31, 2009

New Director at NACDL White Collar Crime Policy Office

Shana-Tara Regon to Lead NACDL White Collar Crime Policy Office here.  The press release states that:

Ms. Regon, formerly of Shipman & Goodwin LLP, Hartford, CT, has represented individual and corporate clients in state and federal civil and criminal investigations. She is a member of the bars of Connecticut and Massachusetts and is admitted to the U.S. Court of Appeals for the Second Circuit. She has represented clients facing a variety of criminal charges including fraud, public corruption, RICO, tax fraud, espionage, felony escape, criminal harassment and assault; and in civil matters such as Qui Tam, Freedom of Information Act and unfair trade practices. She has also served as pro bono immigration counsel for political refugees seeking asylum.

(esp)

May 31, 2009 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 6, 2009

Lawyer Memos as a Basis for Criminal Charges

The media is certainly focusing on the "Torture Memos,"  as they should. See here, here, and here.  But one aspect hasn't really been discussed and that is whether there should be reconsideration of another case that involved a lawyer's opinion letter.  If the torture memos are not a basis for a criminal prosecution, then can one really proceed against Ben Kuehne for his opinion letters? See here

(esp)

May 6, 2009 in Defense Counsel, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Sunday, April 26, 2009

Mourning the Passing of William B. Moffitt

 WBMoffitt We mourn the passing of former National Association of Criminal Defense Lawyers (NACDL) President William B. Moffitt. The NACDL press release states:

"Bill served as NACDL’s president from 1999 to 2000. He also served as president of the Virginia College of Criminal Defense Lawyers, now the Virginia Association of Criminal Defense Lawyers, a NACDL affiliate organization. He was a member of the bars of Virginia and the District of Columbia, the Alexandria (Va.) Bar Association, the American Board of Criminal Lawyers, and the International Association of Criminal Lawyers."    

Bill, in addition to handling many high-profile cases, was also a voice for constituencies that needed a voice. (see here).  He testified before Congress against mandatory minimum sentences (see here), he fought against racial injustice (see here), and always aimed for a just and fair system (see here). And despite his incredibly busy schedule, he found the time to stop and speak to law students so that they could learn from his accomplishments. He will be missed.

(esp)

April 26, 2009 in Defense Counsel | Permalink | Comments (4) | TrackBack (0)

Sunday, April 19, 2009

Discovery, Deferred Prosecution Agreements & the Attorney-Client Privilege

The threat of indictment to a corporation is huge, and one need only look at what happened to Arthur Andersen LL.P to reach this conclusion. In the aftermath of Andersen, many corporations have entered into deferred and non-prosecution agreements with the government, paying huge fines but avoiding prosecution.  With their "backs against the wall" the companies agree to many controversial terms, including in some cases the waiver of the attorney-client privilege. The net result to the government is not only money, but also evidence that can be used to proceed against individuals within the company.

But how does this scenario play out in the long run. The case of U.S. v. The Williams Companies provides an interesting glance at what can happen when the attorney-client privilege is violated by the company. Williams, an opinion issued this past week by the DC Court of Appeals has the individual asking for discovery in the criminal case, and wanting the government to produce the discovery they received from the company.  The problem is that the company does not want the evidence to be produced to the defendant.  So the court is left to rule on "a third-party appeal of a discovery order in a criminal case compelling the government to produce 'all materials disclosed' by the third party pursuant to its cooperation with federal investigators during a criminal investigation of the third party and others." The court remands the case to the district court to assess "which documents were material to the defense."

The moral of the story is - you may think that your back is against the wall to enter into a deferred prosecution agreement, but before you agree to waive the attorney-client privilege, be aware of the long-term ramifications of this decision. 

(esp) (blogging from Chicago)

April 19, 2009 in Defense Counsel, Deferred Prosecution Agreements, Privileges | Permalink | Comments (0) | TrackBack (0)

Friday, April 10, 2009

It's Not Just the Stevens Case - DOJ Needs A Better Compliance Program

A "not guilty" verdict was returned on a drug case in Miami, but what happened during the investigation and prosecution of this case has now resulted in an award of $601,795.88 under the Hyde Amendment. The Hyde Amendment allows for attorney fees when a "prevailing criminal defendant" can demonstrate "that the position the government took in prosecuting him was vexatious, frivolous, or in bad faith." (see Order, infra, citing U.S. v. Gilbert).

Hon. Alan S. Gold, in the Southern District of Florida, issued an Order awarding these attorney fees and enjoined the US Attorneys who practice in that court from "engaging in future witness tampering investigation of defense lawyers and team members in any ongoing prosecution before [this judge] without first bringing such matters to [the judge's] attention in an ex parte proceeding." The judge also issued a public reprimand against the US Attorneys office and specifically 2 AUSAs. And it does not end there, as the judge also makes it clear that a disciplinary body needs to review this matter. (Court's Order - Download 08-20112 (Shaygan) Prosecutorial Misconduct FINAL ) 

The judge presents a thoughtful Order that gives credit to the USA's office for taking "immediate efforts to investigate" this matter when it came to light. After all, the taping of defense counsel and a defense investigator, by government informants, does present serious concerns.  The failure to disclose this material is more problematic.  The judge tells of Brady, Giglio, and Jencks issues in this case.

Hon. Alan S. Gold could not have said it better when he stated,

"It is the responsibility of the United States Attorney and his senior staff to create a culture where 'win-at-any-cost' prosecution is not permitted,  Indeed, such a culture must be mandated from the highest levels of the United States Department of Justice and the United States Attorney General.  It is equally important that the courts of the United States must let it be known that, when substantial abuses occur, sanctions will be imposed to make the risk of non-compliance too costly."

DOJ, the enforcer against corporate misconduct and the one who requests the appointment of monitors in deferred prosecution agreements, may seem to be having its own issues.  One has to give the department credit for recognizing their lack of compliance in the Stevens case and agreeing to dismiss it.  Likewise one has to give the government credit in this recent Miami case, in that the DOJ stated that they "made serious mistakes in a collateral investigation that was an offshoot of this case and stands ready to pay the additional attorneys' fees and costs incurred by the defendant as a result." Clearly the new AG Holder is taking a strong position against prosecutorial misconduct and sending that clear message to those in his office, something that is wonderful to see happening.  But if this were a corporation that had committed misconduct, would these acknowledgments and payment be sufficient? The deferred prosecution agreement would require monitoring, and there would be a need to assure that there was now compliance. Mind you, I am not suggesting that a monitor in another deferred prosecution agreement case, John Ashcroft, be appointed here. But the concern is that both of the cases mentioned here had attorneys who could present these claims.  My concern rests with the many cases that might have similar claims of misconduct but no attorney to bring the issues to light.

(esp)

April 10, 2009 in Attorney Fees, Defense Counsel, Deferred Prosecution Agreements, Judicial Opinions, Legal Ethics, Prosecutors | Permalink | Comments (8) | TrackBack (0)

Wednesday, March 18, 2009

Prosecutorial Misconduct?

Curt Anderson, Florida AP, US prosecutors accused of misconduct in case - Did prosecutors authorize two witnesses to record their conversations with defense counsel? And did the prosecutor fail to reveal evidence to the defense?  The more important question is - what would defense counsel have faced if the tables were turned. 

(esp)

March 18, 2009 in Defense Counsel, News, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2009

Job Posting - Director for White Collar Crime Policy - NACDL

The National Association of Criminal Defense Attorneys (NACDL) posted the following notice seeking a Director for White Collar Crime Policy:

January 27, 2009 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2009

Prosecutors - Don't Indict Attorneys for Giving Legal Advice

Vesselin Mitev, NLJ (Law.com), Lawyer Cannot Be Prosecuted for Giving Advice, Panel Finds -The attorney last year denied encouraging the resignation by the nurses, who had been accused by the DA of abandoning their patients

"We cannot conclude that an attorney who advises a client to take an action that he or she, in good faith, believes to be legal, loses the protection of the First Amendment if his or her advice is later determined to be incorrect. Indeed, it would eviscerate the right to give and receive legal counsel with respect to potential criminal liability if an attorney could be charged with conspiracy and solicitation whenever a District Attorney disagreed with that advice. The potential impact of allowing an attorney to be prosecuted in circumstances such as those presented here are profoundly disturbing. A looming threat of criminal sanctions would deter attorneys from acquainting individuals with matters as vital as the breadth of their legal rights and the limits of those rights. Correspondingly, where counsel is restrained, so is the fundamental right of the citizenry, bound as it is by laws complex and unfamiliar, to receive the advice necessary for measured conduct.

"Moreover, by placing an attorney in the position of being required to defend the advice that he or she has provided, the state compels revelation of, and thus places within its reach, confidential communications between attorney and client. . ."

The opinion is here.

(esp) (w/ a hat tip to Bill Olis)

January 18, 2009 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2008

Federal Convictions Reversed

Alex Bunin, of the Federal Public Defender's Office in New York puts out a wonderful publication on federal convictions that are reversed. His latest update can be found at -

Download federal_convictions_reversed_12.08.pdf

In the white collar area you'll find cases on mail fraud/ RICO/perjury/false statements, etc.

(esp)

December 11, 2008 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2008

More on the Ben Kuehne Case

Dan Slater has a wonderful piece on the importance of the Sixth Amendment's Right to Counsel and the implications to this right when the government proceeds criminally against legal counsel. See Dan Slater, Wall St Jrl, Scales of Justice: The Right to Counsel vs. the Need to Bar Tainted Legal Fees  The article speaks directly to the Ben Kuehne case.  For background see here and here. But I have to wonder about a statement at the end of the article that seems to imply that cases to PDs aren't increasing, so therefore lawyers aren't being skeptical about taking these cases. Could it perhaps be that there hasn't been an increase of drug cases to the PD's office because there has been such a strong focus by the FBI on terrorism and immigration, and a movement away from drug cases? Drug cases have declined and no longer hold the top priority that they did in past years. TRAC notes here in a September 2008 report:

"Ranked 3rd was "Drug Abuse Prevention + Control-Prohibited acts A" under Title 21 U.S.C Section 841. Title 21 U.S.C Section 841 was ranked 2nd a year ago, while it was the 1st most frequently invoked five years ago. It was ranked 1st ten years ago and 1st twenty years ago."

So perhaps lawyers are really being deterred from taking these cases, and the fact that PDs are not seeing a decrease in cases in their office is an indication of just that.

(esp)

November 20, 2008 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Sunday, August 31, 2008

What Others Are Saying About the Stein (KPMG Related) Decision

The decision is here.

Commentary can be found here.

What others are saying:

Anthony Lin, New York Law Journal, 2nd Circuit Affirms Dismissal of Criminal Charges Against KPMG Staffers

Dan Slater, WSJ Blog, 2nd Circuit Upholds Judge Kaplan’s Dismissal of KPMG Indictments

New York Times (AP), Court Upholds Dismissal of Tax Case Against 13

Doug Berman, Sentencing Law & Policy, here

Christine Hurt, Conglomerate, here

Martha Graybow, Reuters, Court upholds dismissal of charges in KPMG case

Richard Janus, CATO, Deputizing Company Counsel as Agents of the Federal Government

Second Circuit Blog, Gimme Shelter

(esp)

August 31, 2008 in Defense Counsel, Judicial Opinions, KPMG, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Friday, August 29, 2008

Pellicano and Christensen Convicted

A press release of the U.S. Attorney's Office for the Central District of California reports that "[f]ormer private investigator Anthony Pellicano and prominent entertainment attorney Terry Christensen were found guilty today of federal conspiracy and wiretapping charges in connection with their illegal wiretapping of the ex-wife of Christensen’s longtime client, billionaire Kirk Kerkorian, during a 2002 child support dispute."  The jury trial lasted 6 weeks.  Pellicano had previously been convicted of other charges, including RICO, in May.  The government had tapes in this case, something that can be very difficult for the defense to overcome.   

Dan Slater, Wall Street Jrl Blog, Terry Christensen, Pellicano Convicted on Wiretapping Charges

Above the Law - Lawyer of the Day - Terry Christensen

LATimes, Private eye Anthony Pellicano, attorney Christensen convicted of wiretap plot

(esp)

August 29, 2008 in Defense Counsel, Prosecutions, Verdict | Permalink | Comments (1) | TrackBack (0)

Thursday, August 28, 2008

Commentary on Stein (KPMG)

Chief Judge Jacobs of the Second Circuit authored the 68 page opinion that affirms Judge Kaplan's prior ruling (see here and here) in the KPMG related matter.  The lower court had dismissed the defendants' indictments.  In affirming the lower court opinion, the Second Circuit states -

"We hold that KPMG’s adoption and enforcement of a policy under which it conditioned, capped and ultimately ceased advancing legal fees to defendants followed as a direct consequence of the government’s overwhelming influence, and that KPMG’s conduct therefore amounted to state action. We further hold that the government thus unjustifiably interfered with defendants’ relationship with counsel and their ability to mount a defense, in violation of the Sixth Amendment, and that the government did not cure the violation. Because no other remedy will return defendants to the status quo ante, we affirm the dismissal of the indictment as to all thirteen defendants." (footnotes omitted)

The Second Circuit stated that the Sixth Amendment right to counsel held that the amendment "protects against unjustified governmental interference with the right to defend oneself using whatever assets one has or might reasonably and lawfully obtain."  The court noted that-

"Defendants were indicted based on a fairly novel theory of criminal liability; they faced substantial penalties; the relevant facts are scattered throughout over 22 million documents regarding the doings of scores of people,; the subject matter is "extremely complex,"; technical expertise is needed to figure out and explain what happened; and trial was expected to last between six and eight months, As Judge Kaplan found, these defendants "have been forced to limit their defenses . . . for economic reasons and . . . they would not have been so constrained if KPMG paid their expenses." We therefore hold that these defendants were also deprived of their right to counsel under the Sixth Amendment. (citations and footnote omitted)

The best line from the case - "But if it is in the government’s interest that every defendant receive the best possible representation, it cannot also be in the government’s interest to leave defendants naked to their enemies."

The government did not lose this case, as some might say.  In fact, they won.  When justice is done for all, as is reflected in this opinion -- the prosecution, defense, and society wins. 

(esp)

August 28, 2008 in Attorney Fees, Defense Counsel, Judicial Opinions, KPMG, Prosecutors | Permalink | Comments (6) | TrackBack (1)

Wednesday, July 23, 2008

Switching Teams

Thursday, July 17, 2008

What's Happening in the Ben Kuehne Case

Monday, May 19, 2008

Mourning the passing of Donald B. Feidler

Fiedlerbryan We mourn the passing of criminal defense lawyer Donald B. Fiedler.  His obituary is here (Omaha World Herald).  He will be missed.  He was well known for his wonderful teaching at the National Criminal Defense College. See NACDL here.

In lieu of flowers, Memorials to National Criminal Defense College, c/o Mercer Law School, Macon, GA, 31207.

The photo of Don doing William Jennings Bryan. With a thanks to Korey Reiman; John Wesley Hall, and Norman Reimer. (esp)

May 19, 2008 in Defense Counsel | Permalink | Comments (2) | TrackBack (0)

Saturday, May 10, 2008

Thornburgh Enters Appearance in Wecht Appeal

The Third Circuit Court of Appeals entered a stay of the Cyril Wecht trial pending appeal (for background on this case see here).  The case of the 77 year old coroner charged with federal violations for alleged state conduct was set for retrial following a hung jury.

A motion to expedite the appeal was also entered.  The appellee's brief is due on or before May 15th and the appellant's reply brief has a deadline of May 20th.  On the day this order was granted, there was also an entrance of appearance by Richard L. Thornburgh, former Pennsylvania Governor and former Attorney General of the United States and now with the law firm of Kirkpatrick & Lockhart, Preston, Gates, Ellis LLP

Should DOJ really be spending taxpayer money on this attempt to re-prosecute this individual? 

Government's Response Arguing that a Stay is Not Necessary - Download govt. Response-Wecht.pdf

Court Order Rejecting Government's Position - Download wecht_order.pdf

(esp)

May 10, 2008 in Defense Counsel, News, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Thursday, May 8, 2008

Government Returns Third Superseding Indictment in Prosecution of Defense Attorney Benedict P. Kuehne

Guest Blogger Jon May, Esq. writes:

When the indictment against Miami attorney Ben Kuehne was unsealed, lawyers across the country scratched their heads. The indictment alleged that Kuehne, hired to vet legal fees paid to famed defense counsel Roy Black for his defense of Fabio Ochoa, was guilty of money laundering. The indictment, however, was almost totally devoid of any facts that explained what Ben actually did that violated the law. The government has attempted to remedy that deficiency in the second and third superseding indictments, but lawyers are still scratching their heads. The government does not contend that the source of the Colombian pesos used to pay Black’s fees were proceeds of any unlawful activity. Rather the government argues that the United States dollars exchanged for the pesos in the United States (by United States agents) were derived from drug trafficking. But the "tainted dollars" exchanged for the clean pesos were not proceeds of any illegal activity involving Fabio Ochoa. These dollars came from various sting operations run by the DEA in New York.

It is the government’s theory that all money exchange businesses operating in the United States are so polluted with tainted dollars and that Attorney Kuehne knew that the money ultimately transferred to Attorney Black was illegal proceeds. Because Kuehne’s trust account was used to temporarily hold the transfer of these funds to Black and because Kuehne drafted opinion letters attesting to the legal source of the funds, the government contends that he committed money laundering.

The government has made this same argument in a number of cases against United States banking institutions who have dealt with money exchanges involving currency from various Latin American nations, most recently Wachovia Bank. But thus far each of these investigations has resulted in deferred prosecutions. Ben Kuehne’s prosecution may be the first case where this unprecedented and peculiar theory has been employed against an individual, in this case a prominent criminal defense lawyer.

A new twist is presented by the third superseding indictment. In addition to money laundering, Ben is charged with defrauding the Government of Colombia, on the theory that these money exchanges defeat Colombian currency control laws. What this means is that the United States is now fully engaged in enforcing other nations’ laws in the courts of the United States.

As this prosecution unfolds, it becomes clearer that the government is using this case to test new theories that have broad implications for every lawyer who provides legal advice that is later argued to have impeded law enforcement efforts, even those of foreign countries. It also threatens to subject civil and corporate counsel to potential prosecution for any legal advice given that somehow violates a foreign law.

Third Superseding Indictment -

Download third_superseding_indictment.5-1-8.pdf

(jm)

May 8, 2008 in Defense Counsel | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2008

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

Tuesday, March 18, 2008

Gideon - 45 years old today

45 years ago, Justice Black issued the famed decision in Gideon v. Wainwright. One would have never suspected then that the right to counsel would be an issue in white collar cases.  One has to wonder whether the high cost of legal fees makes it difficult for many facing these complex cases to receive the representation that they deserve.  An accused may be too wealthy to secure a public defender, but too poor to secure counsel that can spend the time examining the many documents that may be found in something like a fraud case.  In no way diminishing the need for proper indigent defense, something needed in so many parts of our country, it is also important to note that white collar cases raise new issues with regard to securing proper representation for the accused individual.  [See, e.g. Stein (KPMG) case]

(esp) (w/ a thank you to IntLawGrrls Blog for reminding me of this historic day).

March 18, 2008 in Defense Counsel | Permalink | Comments (1) | TrackBack (0)