Friday, June 21, 2013

Jeff Skilling Sentence Reduced To 14 Years

by: Solomon L. Wisenberg

Judge Lake effectively ratified the deal struck months ago by federal prosecutors and the former Enron CEO. The agreement called for a sentence of from 14 to 17.5 years. Skilling agreed to stop fighting his conviction and to hand over restitution funds to the victims. He obviously gets credit for time already served. WSJ has the story here.

(wisenberg)

June 21, 2013 in Arthur Andersen, Enron, Prosecutions, Prosecutors, Sentencing | Permalink | Comments (0) | TrackBack (0)

Monday, April 16, 2012

Jeffrey Skilling - Cert Denied

The Supreme Court denied certiorari in the latest matter related to Jeffrey Skilling.  See here Skilling is still subject to resentencing resulting from the Supreme Court decision that held that the honest services provision of mail fraud (section 1346) would be limited to bribery and kickbacks.  

See also Greg Stohr, Bloomberg, Enron’s Skilling Rejected by Top U.S. Court on Conviction , Washington Post, AP, Court rejects ex-Enron CEO Jeffrey Skilling’s appeal asking for new trial

(esp)

April 16, 2012 in Enron | Permalink | Comments (0) | TrackBack (0)

Friday, April 6, 2012

Will the Supremes Take a Discovery Case

In the wake of the Schuelke/Shields report and the introduction of new discovery legislation, one has to wonder whether the Supreme Court will take a case that raises a Brady discovery issue. At their doorsteps is the case of  James A. Brown, a case from the Enron days. As previously noted (here) Brown, is a former Merrill Lynch executive who "was convicted of perjury and obstruction of justice for his testimony before the Enron grand jury about a transaction between Merrill and Enron in late 1999." There are important issues here like the appropriate standard of review for Brady cases. Should it be "clear error" or should it be de novo. (see here)  The case also examines "materiality," a term that has created some confusion. What must a prosecutor provide to the defense counsel. And isn't it odd that the adversary in the process is making the determination for what the defense is entitled to receive. The case looks at summaries being provided to defense counsel. Bottom line - summaries are not the same as the real thing.

In the reply brief recently filed, they argue-

"Here, as in Stevens, many exculpatory statements appear only in raw notes of government interviews of key players. In Brown, the Enron Task Force actually yellow-highlighted these notes before trial – along with prior testimony and FBI 302s – indicating that the information met the requirements of Brady and was material, but suppressed them anyway. While continuing to deny that any evidence fell within Brady, new prosecutors recently disclosed 6,300 pages including much (but still not all) of the evidence suppressed by the Task Force."  (Reply Brief - Download FILED REPLY ON CERT.)

The government's brief sees things differently - Download SG OPP32312. 

This case is distributed for conference on April 20th.

(esp)

April 6, 2012 in Enron, Judicial Opinions, Perjury, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Sunday, January 15, 2012

More Discovery Issues - Petition for Cert Filed in Brown Case Looks at Brady

The cert petition in James A. Brown v. United States (11-783) raises interesting questions regarding Brady.  Brown, a former Merrill Lynch executive "was convicted of perjury and obstruction of justice for his testimony before the Enron grand jury about a transaction between Merrill and Enron in late 1999."  This case was part of the "Enron barge transaction" investigation. The cert petition states that "prosecutors steadfastly denied that they possessed any Brady evidence and claimed that their production of nineteen pages of court-ordered 'summaries' exceeded their constitutional obligations."  The Fifth Circuit later found the "evidence was exculpatory and 'plainly suppressed,' but 'not material.'"  This was despite the fact that items had been "yellow-highlighted" by prosecutors as "selected exculpatory statements in the evidence they submitted for the district judge's pretrial in camera review." Years after the trial "new prosecutors disclosed thousands of pages of actual notes, 302s, and testimony."  This cases raises the issue of what is the correct standard of review under Brady and Kyles.

The petition asks the Court to "establish three clear rules to enforce the crucial constitutional protections established in Brady v. Maryland."  It states:

"First, consistent with the majority of Circuits, this Court should establish that Brady decisions must be reviewed de novo.  Second, this Court should reject the Fifth Circuit's novel and dangerous approach to determining materiality, and thereby refine and reinforce the Kyles test. Third, this Court should adopt and mandate the majority rule that exculpatory evidence is material per se if the government corrupts the adversary process by providing deficient summaries or affirmatively capitalizing on its suppression at trial."

Discovery issues need to be examined by the Court.  This is a good case for the Court to stress the importance of defendants receiving timely discovery to allow for a fair and proper defense to the charges.

Petition for Cert - Download 2011 CERT PETITION FILED

See also Brady posts of co-bloggers Lawrence Goldman here and Solomon Wisenberg here.

(esp)

January 15, 2012 in Enron, Judicial Opinions, Prosecutors | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 27, 2011

New Cert Petition Filed in Skilling - Interesting Question

Jeffrey Skilling is trying for a second shot with the Supreme Court.  On November 28, 2011 he filed a cert petition with the Court (see here).  The questions presented are:

1. Whether Neder permits a court conducting a harmless-error analysis in the context of an "alternative theory" case to consider only the strength of the Government's case on the legally valid theory, without regard to whether the defendant contested that theory enough to create a factual dispute that rationally could have been resolved in the defendant's favor.

2. Whether a court conducting a harmless-error analysis in the context of an "alternative theory" case may categorically exclude the defendant's testimony in his own defense on the legally valid theory.

The government's response is due January 3, 2012.

(esp)

December 27, 2011 in Enron, Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 6, 2011

Brown Affirmed - En Banc and Rehearing Filed

The Fifth Circuit Court of Appeals affirmed the James A Brown case (U.S. v. Brown), in which a "managing director at Merrill Lynch and the head of its Strategic Asset and Lease Finance group" had been indicted in the Nigerian Barge case coming from the Enron events. The indictment was for "short-cut" offenses of perjury and obstruction of justice and the convictions had previously been affirmed by a three judge panel.  Brown was now challenging his conviction on the basis that "the government violated his rights to due process by withholding materially favorable evidence that it possessed pre-trial."Specifically that it failed to disclose three pieces of evidence which included "1) The FBI notes of its interview with Fastow, 2) Senate investigators' notes of their interview with McMahon, and 3) transcripts of Zrike's pretrial testimony before the grand jury and the SEC."  Although some of this evidence was shown to the court in camera before Brown's trial, the government admitted "that it did not submit the Fastow notes to the district court for in camera review."  The Court takes the position that the government "did not suppress favorable evidence and that, even if it did, it was not material." 

As noted by the defense in its en banc petition request and rehearing request, the court uses a standard other than de novo in reviewing part of this Brady violation claim.  This presents an interesting question for an en banc or later Supreme Court to examine.

Brown En Banc Petition -Download 10-20621 Brown En Banc Petition FILED COPY

Brown Rehearing Petition -Download 10-20621 Brown Panel Rehearing FILED COPY

These events are also a perfect reason why there needs to be a statutory change in the discovery rules. NACDL has a proposal that would assist in making certain that favorable evidence is provided to the defense (see here) and hopefully Congress will take up this issue. Examining these issues after the fact only creates added issues.

(esp)

September 6, 2011 in Enron, Investigations, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)

Sunday, September 4, 2011

Government Successful in Post-Skilling Case

U.S. v. Bryant is a third circuit decision where the court affirmed the convictions finding no defect in the jury instructions for honest services or bribery.  The court found that the "government presented substantial evidence of a quid pro quo bribery scheme to defraud the citizens of New Jersey of Bryant's honest services, including circumstantial evidence of the requisite mens rea..." The court stated that the Skilling case did not "undermine[] the viability of the stream-of-benefits theory." And further is was stated that "[i]ndeed, Skilling did not eliminate from the definition of honest services fraud any particular type of bribery, but simply eliminated honest services fraud theories that go beyond bribery and kickbacks."

The court also looked at a claim of prosecutorial misconduct made by appellants that alleged that prosecutors improperly interfered with the defense's access to witnesses. The court noted that "[i]f the prosecution impermissibly interferes with the defense's access to a witness during a criminal trial, that conduct violates due process insofar as it undermines the fundamental fairness of the proceeding."  In this case, the "District Court took measures to clarify" any "misunderstanding well before trial.  In response to Appellants' motion to dismiss, the Court instructed the Government to send a letter to all subpoena recipients five months before the start of trial, stating that the witness had an 'absolute right to speak to anyone...about anything [they] know about any of the matters under investigation, including the fact that [they] were subpoenaed and ....testified before the grant jury."

Opinion - Download BryantGallagher Opinion

(esp)

Addendum - See also Beldini - Download Beldini NPO

September 4, 2011 in Enron, Fraud, Judicial Opinions | Permalink | Comments (1) | TrackBack (0)

Sunday, August 21, 2011

Post-Skilling Government Approach - Depends on the Case

In Skilling, the Court limited section 1346 to bribes and kickbacks.  But this decision has left courts with several unresolved issues.  The  Stinn case raises an important issue, and the briefs highlight an interesting position being taken by the government.

The defense files a 2255 motion in Stinn saying that Skilling applies and the conviction should be vacated.  - Download Omnibus Memo of Law ISO Stinn's Mtn to Vacate  They note that "[i]t is immaterial that the government and the trial court did not use the phrase 'honest services' in the indictment or the jury instructions. The government argued the same invalid theory as it did in Skilling throughout the trial and relied on that theory to convince the jury to convict Stinn."

The government argues that Skilling does not apply because they did not file the case under 1346. Download Gov's Memo in Opp to D's Mtn to Vacate Convictions & Grant Bail They note "the Supreme Court's holding in Skilling is irrelevant to the defendant's case, as he was not prosecuted under an honest services theory of fraud."

The defense replies, however, with several arguments including - isn't this the exact opposite position the government took in the Redzic case. Download REPLY TO GOVT'S OPP TO MTN TO VACATE  Redzic, an unusual case, had the court finding that the "money or property" portion of the case was problematic and could not stand.  But even though the defendant was not charged under 1346, the court went on to uphold the conviction saying that 1346 did not "create a separate substantive offense, it merely defines a term contained in sections 1341 and 1343."  The court held it was not necessary to cite 1346 in the charging instrument.  

Redzic raised issues of whether the accused had truly been advised under due process of the charges against the defendant since the government was using an uncharged basis for asking that the conviction be upheld.  But now the government in Stinn is saying that it makes a difference whether the government charges a case under 1346. Is the government taking the opposite position in these two cases (Redzic and Stinn), and is this problematic?

(esp)

August 21, 2011 in Enron, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Monday, April 18, 2011

Reflecting on Skilling after the Barry Bonds Verdict

Guest Blogger - Dane C. Ball (Gerger & Clarke)

I was annoyed by the result in Skilling—that the unquestionable honest-services error was “harmless” beyond a reasonable doubt.  But at the time I couldn’t articulate exactly why.  After the Bonds verdict, I can.  In short, the Bonds verdict illustrates the silliness of the conclusion in Skilling that appellate courts can and should sit as the 13th, 14th, and 15th jurors, then use a cold record to speak for the first 12 jurors while pretending appellate courts have crystal balls that make this okay.

 Compare the two cases.  Skilling’s trial was infected by honest-services error:  in the indictment; in the evidence; in the argument; and in the instructions.  Kicking a door cracked open by the Supreme Court in Pulido, the Fifth Circuit swept this under the rug—finding harmlessness—by pretending it could satisfactorily predict that the jury would have convicted on all counts even absent the error.  To be sure, this put the nail in the coffin for the Yates standard of review, which said that when multiple theories are charged and instructed and one is impermissible, reversal usually is automatic because it is “impossible to tell” whether the jury relied on the impermissible theory.  The Yates standard respected the constitutional right to an impartial jury of one’s peers (which appellate courts concerned with finality and efficiency certainly are not); it recognized the limitations of an appellate court’s ability to predict the past under changed circumstances; and it acknowledged that juries are composed of human beings (not robots) who can be and often are influenced by intangibles not apparent in a paper record. 

The Bonds verdict illustrates why eradicating the Yates standard was a bad idea—and indeed leads to a standard that infringes the right to an impartial jury of one’s peers.  Bonds was charged with repeatedly lying to a grand jury, and obstruction of justice essentially based on repeatedly lying to that grand jury.  With a proper indictment and charge, the impartial jury of Bonds’ peers hung on whether Bonds lied to the grand jury, but agreed that he obstructed by lying to the grand jury.  There are hyper-technical legal ways to attempt to explain this—but in reality (where jurors live), the verdict makes little sense.  And surely Bonds’ attorneys will file a motion challenging the sole conviction on this basis. 

But more importantly to me, Bonds illustrates what was right with Yates and what is wrong with Skilling.  Appellate court’s aren’t very good at predicting the past under changed circumstances.  I’d venture to guess that if the Fifth Circuit judges who decided Skilling had placed bets on the Bonds verdict, they’d have batted 0 for 3 predicting hung counts on lying but conviction on obstruction based on lying. 

I hope the defense bar won’t give up on the Yates standard.

(dcb)

April 18, 2011 in Celebrities, Enron, Judicial Opinions, Obstruction, Prosecutions, Verdict | Permalink | Comments (1) | TrackBack (0)

Thursday, April 14, 2011

Sixth Circuit Vacates Wire Fraud and False Statement Convictions of Former Tennessee State Senator

A fascinating opinion vacating convictions and reversing the district court, was issued by the Sixth Circuit in the case of U.S. v. Ford. This appeal concerned convictions for false statements and two counts of "honest services" wire fraud.  This case does not pertain to another case against Ford in which he was sentenced to 5 1/2 years imprisonment.

The government's problem with the 1001 conviction was that the statute was inapplicable to the defendant's conduct. Section 1001 requires federal jurisdiction. As stated by the court in noting the defendant's argument, "while the facts that he failed to disclose concerned an entity inseparable from federal ties, the entities to which he failed to disclose those facts were anything but federal."  The court noted that the "failures to disclose financial interests were related to functions of the state government of Tennessee - the senate's and election registry's reporting requirements."  The court also used the rule of lenity in support of its vacating these convictions.

The wire fraud counts were easier - Skilling limited honest services to "bribery and kickbacks," and that was not the case here.

Attorneys Representing Ford were Paul Mogin, William E. McDaniels, & M. Jesse Carlson (Williams & Connolly LLP).

(esp) 

April 14, 2011 in Enron, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 6, 2011

Skilling Remand

The Fifth Circuit issued its decision on the Skilling remand here.

The US Supreme Court had "invalidated one of the objects of the conspiracy charge - honest-services" and sent it back to the 5th Circuit to determine if the error was harmless.  The 5th Circuit ruling today found it to be harmless error, and they now sent the case back to the trial court for resentencing.  

The 16-page decision commences with a review of how to analyze harmlessness of an alternative-theory error.   The court concludes that "based on [its] own thorough examination of the considerable record in this case, we find that the jury was presented with overwhelming evidence that Skilling conspired to commit securities fraud, and thus we conclude beyond a reasonable doubt that the verdict would have been the same absent the alternative-theory error."  The court later states that because it finds "that the alternative-instruction error in this case was harmless with respect to the conspiracy conviction, it follows that Skilling has no basis on which to challenge the remaining convictions."

More later.

(esp)

April 6, 2011 in Enron | Permalink | Comments (0) | TrackBack (0)

Thursday, March 17, 2011

Government's Response in Brown - Just a Clerical Error

Discussed here is the alleged Brady violations in the James A. Brown case, a former Merrill Lynch executive who was convicted of perjury and obstruction and is contesting these charges on several grounds. Then posted here was a brief filed in the Brown case that argued concerning a possible conflict because Lanny Breuer's name appeared on the brief and he was conflicted out of the case.  The government now responds basically saying that this is just a clerical error.

Government's Brief - Download Filed Version of Government's Opposition to Brown's Motion to Strike

(esp)

March 17, 2011 in Enron, Fraud | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 16, 2011

Does Lanny Breuer Have A Conflict?

Discussed here is the alleged Brady violations in the James A. Brown case, a former Merrill Lynch executive who was convicted of perjury and obstruction and is contesting these charges on several grounds. So far the case has been fraught with issues. The government filed a corrected brief, not a confession of error, caused by some mathematical computation problems. Now it seems the corrected brief has Lanny Breuer's name on it. According to the defense brief filed by Counsel for James A. Brown (Daniel K. Hedges, Sidney Powell, and Torrence E. Lewis), Breuer used to represent a co-defendant and had been conflicted out of the case.  Is this an oops....

Brief of Defense - Download Motion to Strike Governments Brief FILED COPY

(esp)

March 16, 2011 in Enron, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 15, 2011

Brady Problems Outside Alaska

Following the Kohring Catastrophe (see here, here, and here), one has to start looking closely at other cases with alleged Brady violations. One such case is the Brown case pending in the 5th Circuit. Counsel for James A. Brown (Daniel K. Hedges, Sidney Powell, and Torrence E. Lewis) filed an extensive brief in the 5th Circuit that argues that exculpatory Brady material was not provided to the defense. (Brief- Download BROWN BRIEF FILED 122010).  Jim Brown, a former Merrill Lynch executive was convicted of perjury and obstruction and is contesting these charges on several grounds. The case has had an interesting turn of events.  It seems that the government filed a brief claiming that the defense failed to file a timely notice of appeal. Mind you this is after the government was given an extension of time to file its responsive brief by the defense. But it seems that the government had some mathematical computation problems, and on review they realized that Labor Day was in fact a federal holiday and the defense acted timely.  The government, when notified, recognized its error and corrected it by requesting to file a corrected brief, not a confession of error. (See Motion here - Download Brown's OppositionToGMforLeave.)  The important question here is whether there was a Brady violation.  Did a thousand pages of evidence not get revealed until 2010 and if so, why?

(esp)

March 15, 2011 in Enron | Permalink | Comments (0) | TrackBack (0)

Thursday, October 7, 2010

The Post-Skilling Battle That Could Decide the War

Guest Blogger - Dane C. Ball - Gerger & Clarke

We’ve all memorized Skilling’s core holding: 18 U.S.C. § 1346 (“honest-services fraud”) criminalizes only “bribe or kickback schemes” that violate a “fiduciary duty.”  Prosecutors and criminal defense attorneys are now fighting over questions like:  What kind of “fiduciary duty” is required—one created by state or federal law, contract, or simply a relationship of trust?  What’s the definition of “bribe or kickback”—a quid pro quo or something less?  Though these are important issues, regardless their outcome Skilling will remain a significant victory for the criminal defense bar.

But a more dangerous battle is being fought in the Northern District of New York in United States v. Queri.  This battle could decide the war—if the government wins, Skilling may end up meaning next to nothing.

In Quire the government has taken the position that Skilling-barred honest services theories (e.g., undisclosed self dealing or conflicts of interest) are viable traditional money and propertyfraud theories under §§ 1341 and 1343.  The government reasons that such nondisclosures deprive others of an intangible property right to information that “could impact financial decisions” or cause a “change in business conduct.”[1]

If the criminal defense bar is to successfully respond, it must understand Skilling at a deeper level than “honest-services fraud prosecutions require a bribe or kickback scheme.”  At a minimum, it must be made clear (to lower courts) that:

  1. Skilling must mean something.  And the government’s approach in Queri renders Skilling meaningless.  An employer may always claim that disclosure of a conflict or self dealing would have caused it to “change its business conduct.”  It would have investigated, demoted, suspended, terminated the employee or avoided a deal altogether if tainted by “misconduct.”
  2. It is not just unlikely, but unthinkable that in Skilling’s 3 opinions and 60 pages, 9 Justices failed to mention that the case actually was a waste of time because the honest-services fraud theories at issue were viable intangible property rights theories.  Their silence does not leave the questions open—there was no reason to address this issue because the government asserted in extensive briefing that § 1346 was a crucial enforcement tool that catches many schemes that fall through the cracks of §§ 1341 and 1343.  The government certainly did not take the position that the very same theories at issue in Skilling also passed scrutiny under §§ 1341 and 1343.  A wise decision considering that § 1346 is a definitional statute (not a separate crime) expanding the universe of actionable schemes under the mail and wire fraud statutes.
  3. Finally, and perhaps most importantly, morphing Skilling-barred honest-services fraud theories into traditional money and property fraud theories does not avoid the constitutional problems Skillingsought to remedy:  wishy-washy theories based on undisclosed self dealing and conflicts of interest are too “amorphous” to provide fair notice to criminal defendants.  Removing the “right to honest services” label and replacing it with “intangible property right to information” is constitutionally insignificant.  Such repackaging also ignores the federalism concerns that run throughout Skilling and earlier decisions like McNally and Cleveland.

In sum, we must understand and explain that Skilling has meaning outside the honest-services fraud context.  If we fail, we will have snatched defeat from the jaws of victory.

Dane C. Ball is a Houston-based criminal defense attorney with Gerger & Clarke.

(DCB)


[1] The facts in the Quire—employees received side payments from those doing business with the employer and didn’t tell anyone—demonstrate that Skilling’s “bribe or kickback scheme” requirement appears to have teeth.  The government dropped its honest-services theory after Skilling and opted for more clever traditional money and property theories that look a whole lot like honest-services theories, but require no true “bribe” or “kickback.”

October 7, 2010 in Enron, Fraud, Judicial Opinions | Permalink | Comments (2) | TrackBack (0)

Monday, October 4, 2010

Hearing on “Reining in Overcriminalization: Assessing the Problems, Proposing Solutions”

NACDL (Tiffany Joslyn) and the Heritage Foundation (Brian Walsh) wrote a groundbreaking report titled, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, that was the subject of a congressional hearing this past week.  I had the pleasure to provide testimony at that hearing (my testimony). Others testifying included, NACDL President Jim Lavine (testimony), Brian Walsh of the Heritage Foundation (testimony), former head of the Enron Task Force Andrew Weissmann (testimony) and law professor Stephen Smith (Notre Dame)(testimony).  Abner Schoenwetter (testimony) and former race car driver Bobby Unser (testimony) told of their experiences as victims of overcriminalization. The hearing before the House Judiciary Committee, Subcommittee of Crime, Terrorism and Homeland Security was the wonderful work of Subcommittee  Chairman Bobby Scott and Ranking Member Louie Gohmert.  It was also wonderful to see House Judiciary Committee Chairman John Conyers, Jr. participating in this hearing.

NACDL Press Release here

(esp)

October 4, 2010 in Civil Enforcement, Enron, News, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Skilling Update

Wednesday, September 15, 2010

Government "Finally" Dismisses Charges in Enron Barge Case

The government filed a Motion to Dismiss - with prejudice - charges against James A. Brown on Counts One, Two, and Three.  The former Merrill Lynch banker had been charged as part of the Enron Barge case.  An appeal on the motion for a new trial on Counts IV and V remains.

This has been a case that has a long history with claims of discovery violations on the part of the Enron Task Force.  The defense had argued that "[a]fter Brown's trial and appeal, a new prosecutor finally produced the government's notes of multiple conversations with Fastow, the grand jury testimony of Merrill counsel, and other Brady material - all which proves Brown's innocence on all charges." here 

The original case was discussed on this blog back in 2005.  And a lot has happened since the sentencing of back then. 

What is interesting now is that it takes the government until today to dismiss these counts - with a trial date that had been set for September 20th.  Is it really necessary to wait right up to the trial date to dismiss? One can only imagine the costs to the defense of preparing for trial?  

Motion to Dismiss - Download Dkt. 1263 MTD

 (esp)  

Addendum - Opposition to Continuance - Download Dkt. 1252 Brown's Opposition to Continuance

September 15, 2010 in Enron, Prosecutions | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 29, 2010

Open Questions Post Skilling Related to the Honest Services Issue

As a result of the Skilling decision see here, here, here, here, and here, many questions are left for consideration by lower courts and perhaps Congress and the Supreme Court in future cases.  What are some of these questions:

  • Can Congress rewrite a statute that would pass constitutional muster? (but perhaps they should think twice about doing this - see here)
  • Did the Court engage in interpretation or invention?
  • What cases will require reversal as a result of the holding in Skilling (e.g., Will Governor Ryan's conviction stand?)
  • Are there other available statutes to prosecute conflicts of interest and self-dealing?
  • When does harmless error require a reversal of a case that alleged honest services?
  • The Court in footnote 37 notes the disagreement of lower courts on whether one has to violate state law, is this now an irrelevant question?
  • The Court limits "bribery and kickbacks" to the "core of the pre-McNally case law.  What does this include?
  • Does the Rule of Lenity only apply after the Court has made its interpretive (inventive) decision?
  • The Court states that its definition only covers "serious culpable conduct." Does this mean that minor frauds cannot be prosecuted under the honest services provisions?
  • Does the Court really set up a "uniform national standard" for honest services, and therefore can state law not be used to determine whether it is a bribery or kickback?
  • If the Court says you use pre-McNally caselaw on bribery and kickbacks, how do you interpret conflicting opinions by lower courts?
  • What does bribery mean?  The Court references 201 (b) and not (c), so is bribery limited?
  • In footnote 46 the Court refers to state and local corruption - but what statutes get included here?
  • Has the Court redefined what constitutes vagueness for purposes of statutory interpretation?
  • In adopting a position expressed by a law professor in an amicus brief, is the Court saying that law professors should focus on writing amici briefs and not law review articles?

(esp)

June 29, 2010 in Enron, Fraud, Judicial Opinions, Prosecutions | Permalink | Comments (0) | TrackBack (0)

Thursday, June 24, 2010

Skilling - Commentary

It was a Thanksgiving Day turkey carving by the Court, and they left a lot more meat on the bones then many imagined.

Will We See More Government Stretching? The Court says, "[a]s to arbitrary prosecutions, we perceive no significant risk that the honest-services statute, as we interpret it today, will be stretched out of shape."  Gosh I hope they are correct. Based upon the DOJ's track record, that has not been the case.  They started the ball rolling with intangible rights well before the Supreme Court knocked it out in 1987.  And even when raised  as an issue in these three cases, the government argued for more to be included in the statute's sphere.

Should Congress Rewrite the Statute? The Court said - ""The 'vast majority' of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes." -  This should be a statement Congress should look at when and if the government takes up the Court's second invitation to rewrite the statute.

What happens now?  We saw that after the McNally case crushed the government's intangible rights theory, many cases required interpretation to see if they deserved to be tossed, or whether they could survive the holding.  In the next few weeks and months, we are likely to see a good number of these type of arguments being made. 

Will DOJ learn from this?  They have bribery, they have mail fraud and wire fraud with money or property, and they have section 666 for the state/local officials. The government has plenty of tools to prosecute crime.  The question is whether they will be happy with what they have, or instead decide that they want to try for more.

(esp)(blogging from Lisbon, Portugal)

June 24, 2010 in Enron, Fraud, Judicial Opinions | Permalink | Comments (0) | TrackBack (0)