Saturday, June 16, 2012
The Tenth Circuit recently affirmed the convictions, but remanded the sentence of Howard O. Kieffer. Kieffer, who for several years was practicing criminal defense law, had a problem - he never went to law school and had no license to practice law. A court in the Eighth Circuit in 2010 upheld his convictions for mail fraud and making false statements. But he was also convicted in 2010 in Colorado for wire fraud and contempt of court. That decision was recently affirmed in the Tenth Circuit with a remand on sentencing here.
There is one aspect of this Tenth Circuit decision that raises eyebrows. The issue is what constitutes interstate wires for purposes of the wire fraud statute. This is a particularly important issue in these days of the WorldWideWeb. For example, in United States v. Phillips, 376 F. Supp2d 6 (D. Mass. 2005) the court rejected the government argument that “in order to satisfy the elements of this offense, it was not necessary to present evidence that the pertinent wire communications themselves actually crossed state lines, as long as the communications (whether interstate or intrastate) traveled via an ‘instrument of an integrated system of interstate commerce,’ such as the interstate phone system.” Even in the Tenth Circuit in United States v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), the court previously held that one person’s use of the internet, “standing alone” was insufficient evidence that the item “traveled across state lines in interstate commerce.”
So it is surprising to read in Keiffer that the Tenth Circuit is now saying, "“[t]he presence of end users in different states, coupled with the very character of the internet, render this inference permissible even absent evidence that only one host server delivered web content in these two states.”
Clearly Keiffer's conduct was appalling, but the ramifications of the language in this decision could be huge. Could individuals from outside this country be charged with crimes against the United States merely because they put something on the web?
(esp)(hat tip to John Wesley Hall)
Wednesday, June 6, 2012
Guest Blogger – Rochelle Reback
In light of the prevalence of ESI discovery in white collar cases it is ironic that an important principle regarding electronic discovery is developed for us in an indigent's drug smuggling case. But, we'll take it! In United States v. Stirling ( Download Altonaga order granting new trial(1)) yesterday, District Judge Altonaga found that notwithstanding the government’s technical compliance with its ESI discovery obligations under Federal Rule of Criminal Procedure 16(a)(1)(B) by furnishing an exact replica of defendant's hard drive to the defense, the government's electronic discovery dump in this case so seriously impaired the defendant’s trial strategy that there should be a new trial. Not known to defendant's attorney, on the disclosed and mirrored hard drive were some of defendant's Skype chat logs which the government's forensic expert was able to open and view only by using a specialized computer program. The Skype chats were not visible in any other way. But neither the existence of the Skype chats on the hard drive, nor the expert's employment of the specialized program to view them were disclosed to the defense until after defendant testified. In rebuttal the prosecutor called their expert and used these Skype chats to impeach defendant to devastating effect as they contradicted much of his trial testimony. Stirling was convicted.
Under Federal Rule of Criminal Procedure 33, Judge Altonaga ordered a new trial in "the interest of justice," even though the government had warned the defense that if Stirling took the stand and testified falsely, there was [unidentified] evidence on the computer which the Government would use in its rebuttal to impeach him. Finding that this was not like the cases cited by the government where courts have consistently refused to require the government to identify exculpatory or inculpatory evidence within a larger mass of disclosed evidence, Judge Altonaga wrote that the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii) should also apply in criminal cases and the government should be required to produce ESI in a "reasonably usable form." She found the government's "technical compliance with its discovery obligations under Federal Rule of Criminal Procedure 16 (a)(1)(B) by the furnishing of an exact replica of the hard drive" to not be enough. The government "never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed." Judge Altonaga agreed with defense counsel that "production of something in a manner which is unintelligible is really not production." She ruled that "If, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial."
One has to wonder if the "interest of justice" result would have been the same if the defendant in this case was not indigent and did not have to seek the court's assistance for experts and more sophisticated computer resources to unlock the hidden mysteries of the electronically stored information.
(reback) –(with hat tips to Donna Elm and Robert Godfrey)
Tuesday, June 5, 2012
The Fifth Circuit affirmed the convictions and sentences in U.S. v. Brooks, a case involving alleged "false reporting of natural gas trades in violation of the Commodities Exchange Act and the federal wire fraud statute."
Although the court distinguishes the Stein decision from the Second Circuit with the facts in this case, both cases had individual defendants who had their attorney fees cut off. In Brooks, the defense claimed it was from government pressure, but the Fifth Circuit said the factual findings were not present to confirm this conduct. The court found that the company's policy on payment of attorney fees was a discretionary policy. But when a company gets a deferred prosecution agreement one has to wonder if there is an incentive to show cooperation, albeit payment of attorney fees can not be a factor used.
There is also an interesting question of what constitutes "reports" for purposes of the CEA or CFTC regulations. This is an intriguing issue as one is basically violating federal law through a submission document. The Fifth Circuit rejected a void for vagueness argument here.
The Fifth Circuit also found the Fifth Circuit Pattern Jury Instruction as meeting the recent Supreme Court decision in Global Tech, although they admit it does not use the same language. The question here is whether deliberately closing one's eyes is the same as taking "deliberate actions to avoid learning of the fact," the test set forth in Global Tech. I see a difference in that one is passive and the other is active. The Court seems to be satisfied with the evidence in this case, but one has to wonder if the Fifth Circuit should be quickly looking to change its pattern jury instruction to avoid this issue in future cases.
Then there is the question of defense witness immunity. A witness is on the prosecution witness list and is not called to testify because the prosecution has concerns about the witnesses truthfulness. The witness has not yet been sentenced (the government postponed sentencing for 39 months- obviously to be after this trial) and decides to take the Fifth Amendment. The prosecution called the witness the evening before the witness was to testify, but says the call was to determine if they needed to prepare the witness for cross-examination. The defense argues that the witness has exculpatory evidence for the defense. The defense asks for defense witness immunity and doesn't get it. One has to wonder whether the jury really had full information to resolve guilt or innocence? But the Fifth Circuit held otherwise.
And this is not a case where defendants are receiving light sentences. All the defendants were level one and yet all of their sentences exceeded 11 years imprisonment, with one receiving a 14 year sentence. Whoever thinks white collar offenders are getting off easy, needs to just look at this case to see that this is not the situation.
Thursday, May 31, 2012
As noted here, John Edwards was found not guilty on one count, and the jury was unable to reach a verdict on the remaining counts. Prosecutors should now move on and not retry Edwards on these remaining counts.
The government has expended enough taxpayer money on this case and Edwards most likely has had to incur the cost of his defense. Prosecutors have already hurt Edward's reputation with the evidence presented at trial - so there is no punishment basis for proceeding further. Evidence not presented at trial left the murky question of whether this money was even a political contribution, and the testimony of Federal Election Commissioner Scott E. Thomas that was not heard by the jury raises additional issues on campaign contributions. But the place to resolve this is not in the criminal courtroom. More importantly, if skilled folks can differ on this question then one certainly should not hold someone criminally liable.
No one walks out unhurt by this trial. And that is the huge cost that comes with a prosecution. It is for this reason that prosecutors need to consider carefully prior to charging anyone with criminal conduct.
Wednesday, May 30, 2012
In In re: Pacific Pictures the Ninth Circuit looks at "whether a party waives attorney-client privilege forever by voluntarily disclosing privileged documents to the federal government." The court starts with the principle that "voluntarily disclosing privileged documents to third parties will generally destroy the privilege." The court rejects the petitioners argument that disclosing documents to the government is different from disclosing them to civil litigants and that a selective waiver should apply. The court notes that legislative attempts to change the evidence rules to allow for selective waiver have failed so far.
The court also does not enforce a confidentiality letter between the corporation and the government. The court states:
"The only justification behind enforcing such agreements would be to encourage cooperation with the government. But Congress has declined to adopt even this limited form of selective waiver."
The court rejected a claim that "adopting such a rule will drastically impair law enforcement attempts to investigate espionage against 'attorneys, financial institutions, medical providers, national security agencies, judges, large corporations, or law firms.'"
Entities provide significant materials to the government as part of deferred and non-prosecution agreements. Not having a privilege needs to be considered by corporate counsel in deciding what to give to the government.
Monday, May 21, 2012
Here is the Houston Chronicle's take on today's proceedings in U.S. v. William Roger Clemens. Brian McNamee was allowed to testify on re-direct that he injected three other players with HGH. Judge Walton gave the jury a limiting instruction that the testimony could only be used to bolster McNamee's credibility--not to infer Clemens' guilt. Still, this was a significant break for the government.
I am now batting 0 for 2 in my most recent predictions. I predicted that Judge Walton would strike some of Andy Pettitte's testimony and that the judge would not let McNamee talk about injecting other players. So take this next observation wiht a grain of salt. To me, the jurors' questions at the end of each day show their skepticism regarding the government's case and the credibility of key government witnesses.
Sunday, May 20, 2012
The name says it all. On Friday the Clemens prosecutors filed the Government's Motion to Admit Evidence of Brian McNamee's HGH-Based Interactions With Other Players and His Cooperation Relating to the Same to Rehabilitate the Witness. Call it anything you want, it is nothing more than an attempt to convict Clemens through guilt by association. As Judge Walton said before the first trial, in keeping this evidence out:
"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.”
“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."
Judge Walton's original ruling, which shocked the government, was provisional:
"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.”
Now the government is making its move. Of course the prosecutors would have filed this motion irrespective of how McNamee's cross-examination actually went. They immediately violated the Court's order during opening statement of the first trial by mentioning other Yankee players who received illegal substances.
I'm betting that Judge Walton keeps the evidence out.
Thursday, May 17, 2012
Judge Walton says that the jury is bored at the Clemens trial, and of course he blames the lawyers. Maybe he should look in the mirror. The proceedings would have moved much faster had the Court put a stop to the government's pettifogging objections to cross-examination questions that allegedly strayed beyond the scope of direct.
The judge has also, according to the latest press reports, characterized Rusty Hardin's lengthy cross-examination of Brian McNamee as confusing.
I stopped in on the trial yesterday morning during Hardin's cross-examination of McNamee. Although there was no smoking gun moment, it was an accomplished cross that ably exposed McNamee's shifty, evasive personality. Near the end, Hardin asked a perfectly acceptable question, the point of which was to stress that McNamee would have been valuable to Clemens as a private trainer irrespective of McNamee's ability to provide illegal drugs. The prosecution objected. Rather than simply ruling on the objection, Walton engaged in an unnecessarily lengthy exchange with the attorneys on the finer points of evidentiary law. You would have thought they were discussing the Ex Post Facto Clause or the Magna Carta.
The trial judge has great discretion to move a case along--even a big case. This doesn't mean that the Court should prevent either side from putting on its evidence or vigorously questioning witnesses. The Clemens case would benefit from quicker bench rulings on objections, particularly objections that only serve to break the other side's pace and stride. The government objections that I witnessed on Wednesday did not merit the lengthy treatment they were given by the Court.
Thursday, May 10, 2012
The white collar crime blog, for two years (see here and here), has given the collar for the case most needing review to the case of Sholom Rubashkin. The case has an incredible gathering now from a spectrum of individuals and groups across political and ideological views. The Petition for Cert is here and background on the case is here. Here are some of the interesting updates on this case -
Washington Legal Foundation - Urges High Court to Review Unreasonably Harsh Sentence for Small-Business Owner
Amici Brief for Justice Fellowship & Criminal Law & Sentencing Professors and Lawyers - Download 11-1203 amici brief (a wonderful brief authored by David Deitch and Alain Jeff Ifrah that points out the jurisdiction split among Circuits and why it is important for Appellate "judges to state on the record that they have considered each non-frivolous argument for variance under the factors listed in Section 3553(a)" and how and why each such argument affected the sentence imposed.
Amicus Brief of the Association of Professional Responsibility Lawyers (APRL) - Download APRL Amicus Brief in Rubashkin (a strong brief written by W. William Hodes that provides the importance of this case from the perspective of "an independent national organization of lawyers and legal scholars whose practices and areas of academic inquiry are concentrated in all aspects of the law of lawyering." The brief focuses on the jurisdiction split regarding Rule 33 of the Federal Rules of Criminal procedure. The brief also points out important ethics issues that warrant review in this case.)
Hopefully, someone is listening.
Wednesday, May 9, 2012
I mentioned in a recent post that Reggie Walton is a fair judge. That fairness was on display again yesterday in the Roger Clemens trial, when Walton prohibited federal prosecutors from introducing testimony and documents pertaining to Clemens' fat salary as a pitcher. Walton correctly concluded that the prejudicial effect of this evidence outweighed its supposed probative value. It is a very rare federal judge who will bar this kind of "lavish lifestyle" evidence. The government always wants it in, ostensibly to show that a defendant's alleged criminal conduct was part of an effort to maintain a lavish lifestyle. In reality, prosecutors simply want to prejudice the defendant in the eyes of jurors by showing them how rich he is, how "high-on-the-hog" he lives, and how different he is from you and me.
Thursday, May 3, 2012
Two weeks ago Judge Kimba Wood of the Southern District of New York dismissed the indictment in one of the sillier prosecutions brought in that court in recent years. See article here and opinion here - Download Opinion. Julian P. Heicklen, an 80 year-old retired professor, was charged with jury tampering (18 U.S.C. 1503) for distributing at the courthouse steps pamphlets of the Fully Informed Jury Association ("FIJA") that advocated jury nullification.
The pamphlet stated, in part: "You may choose to vote to acquit, even when the evidence proves that the defendant 'did it,' if your conscience so dictates." It also suggested that jurors may choose to be less than candid when asked questions during jury selection about their ability to follow the law as instructed by the judge. It is "your moral choice," the pamphlet stated, whether to "give answers that are likely to get you excused from serving, or say whatever it takes to be selected, so you can do your part to see that justice is served."
Jury nullification, as commonly understood, goes only one way. It allows jurors to ignore their oaths and acquit a defendant even if they are convinced that her guilt has been proven beyond a reasonable doubt. The potential effect of Heicklen's pamphleteering -- if it were to have any, which I question -- would be acquittals (or hung juries) in cases that otherwise would have resulted in jury verdicts of guilty.
The prosecutors in the Southern District were understandably upset. Heicklen was in a sense treading on their turf -- both the courthouse and the law. The prosecutors reacted aggressively, investigating by using an undercover agent and indicting based on an apparently unclear statute and in a bedrock area of First Amendment protection. In court, a prosecutor called Heicklen's advocacy "a significant and important threat to our judicial system."
Rather than the crucial decision to prosecute being made by independent, disinterested prosecutors, as it should always be, here it was made and carried out by the very prosecutors who were in a practical sense themselves the aggrieved parties or "victims." It was their cases -- their convictions -- that Heicklen arguably put in jeopardy by suggesting that jurors might still acquit even if they believed the defendant had been proven guilty beyond a reasonable doubt. The Southern District prosecutors were too conflicted and too involved to be allowed to make the decision whether to prosecute Heicklen (and they were too conflicted and too involved to make a reasoned, dispassionate and intelligent decision). The conflict here was not the potential or hypothetical conflict that prosecutors often argue should disqualify defense counsel, but an actual one. If the prosecutors felt Heicklen should have been prosecuted, they should have referred the ultimate decision to the Department of Justice in Washington. (While I do not know definitively that the Southern District prosecutors did not, if they had, I would have expected that the case would have been prosecuted by Central DOJ lawyers.)
There is an obvious imbalance in the criminal justice system. One litigant, the prosecutor, may charge the opposing litigant with perjury, the litigant's lawyer with obstruction and the litigant's advocate with jury tampering. The other litigant, the defendant (and his counsel), can only howl about agents who lie and prosecutors who secure convictions and jail sentences by concealing evidence. The power of one litigant to protect his case (or cases) by charging one seeking to undermine it (or them) is a drastic one that should be used with care and extreme caution. Here, prosecutorial discretion went awry.
Judge Wood's decision was calm, deliberate, and thorough, considering statutory construction, legislative history, judicial rulings and constitutional implications, and not, at least directly, criticizing the prosecution. Granting the defendant's pre-trial motion to dismiss under Fed. R. Crim. P. 12(b) on the grounds that the facts did not state an offense, she ruled that the statute was limited to advocacy relating to a specific case, not a general philosophy, as here. Although Judge Wood ultimately relied on a plain language analysis and did not explicitly rule on the First Amendment issue, she indicated that Heicklen's conduct was constitutionally protected free speech.
The case represents governmental overreaching in a sensitive free speech area. Perhaps if the decision whether to prosecute were made at Central DOJ, it would have been different, and the Office of the United States Attorney for the Southern District of New York, a highly respected and effective office, would have been spared an embarrassing defeat (and Mr. Heicklen spared a prosecution, although I suspect he rather enjoyed it).
The ultimate result may be that FIJA now has a license (in the form of a district court decision) to distribute literature suggesting nullification on the steps of federal courthouses, or nearby, throughout the nation. (Judge Wood did recognize that reasonable restrictions on such distribution under other laws may apply.)
Monday, April 30, 2012
In United States v. VandeBrake, (opinion- Download 111390P) the Eighth Circuit in a 2-1 opinion affirmed a 48-month sentence in an anti-trust case. The trial court had "varied upward from the advisory guidelines range based primarily upon VandeBrake's lack of remorse and the court's policy disagreement with United States Sentencing Guidelines Manual (U.S.S.G.) § 2R1.1." The trial court rejected, after giving notice to the parties, a binding plea agreement which called for a sentence of 19 months. Defendant-appellant argued that imposing "the longest sentence ever imposed in an antitrust case" was unwarranted here in comparison to the other case that received this same high sentence. The Appellate court affirmed the decision, but there's a concurring opinion and also a dissent.
The concurring opinion "disassociate[s itself] from the district court's comments about economic success and status, race, heritage, and religion." Chief Judge Riley writes - "I consider those comments inappropriate and not a proper reason for supporting any sentence."
The dissent by Circuit Judge Beam states in the opening paragraph - "even a multi-millionaire businessman has the right to be sentenced under the rule of law, especially rules recently put in place by the Supreme Court. Rich persons, poor persons and persons at all other economic strata should expect no less." The dissent states "the sentencing court's bald assumption that it has deferential discretion to substantially vary from all guidelines on policy grounds is reversible error." Judge Beam states:
"My research reveals that there were only a few hundred offenders sentenced for committing antitrust violations between FYs 1996 and 2011. The statistics also demonstrate that, over a period of 15 years, VandeBrake was the only antitrust offender sentenced above the guidelines range. Indeed, out of some 230 offenders The preliminary data for FY 2011 indicates that one antitrust offender was sentenced above the guidelines via an upward variance. Since VandeBrake was sentenced under § 2R1.1 since FY 1997, 83 were sentenced within the guidelines range and 146 were sentenced below the guidelines range. Similarly, since FY 1996, of the 288 offenders sentenced with an antitrust violation being the "primary offense," 95 were sentenced within the guidelines range and 192 were sentenced below the guidelines range." (Footnotes omitted)
Will DOJ join defense counsel on the same side in sending this case higher? They should. As noted here, Professor Berman looks at another white collar case with a high sentence. He states "I would bet a whole lot of money that on appeal federal prosecutors will defend this extremely long white-collar sentence as reasonable even though it surely does appear out of line with the sentences given to similar defendants convicted of similar crimes." As "ministers of justice" DOJ should support the defense if they are to continue their argument that sentences in white collar cases should remain within the guidelines.
Friday, April 13, 2012
Circuit Judge Pryor not only voted to deny a rehearing en banc in the Ali Shaygan case seeking Hyde Amendment fees, but he went out of his way to explain his reasoning of why he was not supporting the factfinder district court judge. (see here). His opinion, one that seems likely to be headed for a higher review, looks at why he thinks a Hyde Amendment award was improper in this case. His decision spends several pages explaining what he believes was the evidence against the defendant, who by the way was acquitted after a trial by jury. He notes how defense counsel ( who he does not mention by name - it's David Oscar Markus) is "an elite defense attorney, and Shaygan's superb counsel took advantage of the opportunity to focus the attention of the jury on the alleged misconduct by the government in the collateral investigation."
The district court had granted Shaygan's Hyde Amendment motion and ordered payment of $601,795.88 for attorney fees and costs. The award was a response to a finding of prosecutorial conduct including discovery violations. Circuit Judge Pryor comes to the defense of the prosecutors saying that "[t]hese public servants deserve better." He ends his affirmation of the denial for a rehearing en banc stating that "[t]he prosecution of Shaygan, triggered by the death of his patient and supported by substantial evidence, was not wrong." Check out John Pacenti's article in the Daily Business Review, Eleventh Circuit releases new opinion on Shaygan case, criticizes dissent
The two person dissent to this denial of a rehearing en banc by Circuit Judges Martin and Barkett present a very different picture. They note that U.S. District Judge Alan S. Gold's "comprehensive fifty-page Order awarding Hyde Amendment attorneys fees to Dr. Ali Shaygan was 'crowded with thorough findings of fact' detailing government misconduct that took place in his prosecution." They state:
"This Court's opinion also strips our federal judges of a rarely needed, but critical tool for deterring and punishing prosecutorial misconduct. And the prosecutorial misconduct that happened in Dr. Shaygan's case deserved punishment."
This dissent outlines the discovery that was not provided to the defense despite a court order. They state "[t]he government violated Dr. Shaygan's rights, and now, contrary to what Congress has provided, he is left alone to pay the costs he suffered at the hands of these rule breakers."
This case sets up a wonderful review of what should be the role of the Hyde Amendment, who should be the finder of facts when there are allegations of misconduct, what should be the standard of review, and how best to remedy claims of discovery violations. This case also needs to be considered as Congress decides whether to pass Brady legislation.
Wednesday, April 11, 2012
The Ninth Circuit en banc issued an opinion in the case of United States v. Nosal (Download US v Nosal 9th Cir 2012-04-10). It is not often that we see opinions that interpret section 1030, the Computer Fraud and Abuse Act. But it is also likely that this will be a hot area of the law as Hon. Kozinski, who authored the opinion in this case, begins with the line "[c]omputers have become an indispensable part of our daily lives."
The government charged the defendant with violations of 18 U.S.C.s 1030(a)(4) for allegedly "aiding and abetting" a companies employees "in 'exceed[ing their] authorized access' with intent to defraud." The trial court dismissed certain counts and the government appealed. In affirming the trial court's dismissal, the 9th Circuit states, "[b]asing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved." The court finds that "[t]herefore, we hold that 'exceeds authorized access' in the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use."
The Ninth Circuit makes a point of noting the jurisdictional split that exists with respect to this issue. The court states,
"[w]e therefore respectfully decline to follow our sister circuits and urge them to reconsider instead. For our part, we continue to follow in the path blazed by Brekka, 581 F.3d 1127, and the growing number of courts that have reached the same conclusion. These courts recognize that the plain language of the CFAA 'target[s] the unauthorized procurement or alteration of information, not its misuse or misappropriation.'"
The decision uses the Rule of Lenity and sends word to Congress that if it "wants to incorporate misappropriation liability into the CFAA, it must speak more clearly."
The court rejects an argument we often hear from the government - trust us - we won't prosecute cases that should not be prosecuted. The court noted that most individuals are unaware of the terms of service agreements of internet providers including one major company that until recently "forbade minors from using its services." The court stated, "we shouldn’t have to live at the mercy of our local prosecutor. . . And it’s not clear we can trust the government when a tempting target comes along."(citations omitted).
(esp)(hat tip to Evan Jenness)
Sunday, April 8, 2012
In a Petition for Rehearing and Rehearing en Banc, defense counsel raises that the Second Circuit did not consider the Supreme Court's recent decision in Global Tech (for more discussion on this case see here and here). The defense argues that the 2009 conviction of Frederic Bourke Jr. for conspiracy to violate the FCPA and for making false statements was affirmed, but the jury was not apprised that reckless conduct was insufficient for conscious avoidance. Global Tech was issued after oral argument in the case.
Petition for Rehearing - Download Bourkeca2rehearingpetition
Friday, April 6, 2012
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.
Thursday, April 5, 2012
Supreme Court decisions in new areas of criminal law often lead professors and practitioners to predict startling changes in the legal landscape. Regarding the Frye and Cooper decisions I discussed earlier this week, Widener Law Professor Wesley M. Oliver told the New York Times that these cases "constitute the single greatest revolution in the criminal justice system since Gideon v. Wainwright . . . ." See here. I do not agree.
While I do expect that there will be some formalistic change in plea offer procedures so that offers will routinely be made in writing or on the record, I do not expect that these decisions will ultimately provide great benefits to many defendants or great detriments to many prosecutors. Most courts had already recognized that ineffective assistance arises when a defense lawyer fails to communicate a plea offer or gives incompetent advice regarding whether to accept it. True, Frye/Cooper allows, but does not mandate, relief even after trial for such ineffective assistance. And, there probably will be an increased number of post-trial petitions concerning alleged failures of counsel to communicate favorable pleas or competently advise whether to accept them. However, few of these challenges are likely to be ultimately successful.
Indeed, the obstacles set forth by the Supreme Court for a defendant convicted after trial to succeed are substantial. The defendant must demonstrate that the plea offer that counsel failed to communicate was both a formal and favorable one or that counsel gave constitutionally inadequate advice concerning it, that the defendant would have accepted the offer if it had been presented properly, that the offer would not have been cancelled by the prosecutor prior to execution and that the offer would have been accepted by the judge. Then, even if the prosecutor is required to reoffer the plea proposal, the judge may in her discretion sentence the defendant according to the conditions in the deal, to the same sentence he received after trial, or somewhere in between. Thus, even if the Court finds that the defendant was unconstitutionally deprived of a fair opportunity to accept a proffered plea offer, the defendant may ultimately receive the very same sentence he received after trial -- essentially no relief at all.
Justice Scalia in his dissent in Cooper found it "extraordinary" that the remedy for an unconstitutional conviction "should ever be subject at all to the trial judge's discretion," and that a "remedy could ever include no remedy at all."
Justice Scalia suspects, so he says, that the "squeamishness" in fashioning a remedy and the "incoherence" of the remedy provided is attributable to the majority's inner recognition that in fact there is "no real constitutional violation." I suspect that it is a compromise to secure a five-vote majority.
Tuesday, February 21, 2012
[All of the facts in this post come from the 11th Circuit opinion in United States v. Ignasiak, publicly available on the 11th Circuit's website (here) or from PACER.]
Arthur Jordan used a counterfeit badge and posed as an on-duty U.S. Marshal in order to carry firearms onto commercial airplanes while on personal travel. He did this nine times. According to the United States Court of Appeals for the 11th Circuit, Jordan's "criminal conduct" resulted in "multiple violations" of 18 U.S.C. Sections 912 and 1001 and 49 U.S.C. Section 46505, and "could have been charged as felonies."
But Jordan wasn't even charged with a misdemeanor. He got pretrial diversion from the South Dakota U.S. Attorney's Office, paid $2,000.00, and agreed never to carry firearms on an airplane again, except while on official business.
Jordan is not your everyday citizen. He is none other than Dr. Arthur Jordan, who goes around the country testifying as an expert for the U.S. Government in Health Care Fraud/Controlled Substances Act prosecutions against pain management physicians. He charges $300 per hour and, during his November 2008 testimony in U.S. v. Ignasiak, claimed to have earned around $30,000.00 as a government expert up to that point in time. Dr. Jordan was the key government expert against Robert Ignasiak in the latter's criminal jury trial, testifying for almost three days. (Roy Black was lead defense counsel during the trial.)
But there's much more to the story. Given its reversal, and its finding that the evidence was sufficient, the 11th Circuit declined to address the other issues raised by Ignasiak on appeal--except for one.
You see, none of the Ignasiak defense attorneys knew during the trial about Dr. Jordan's "criminal conduct" or his South Dakota pretrial diversion agreement. Several months after the Ignasiak guilty verdicts, the government filed the Government's In Camera Notice to the Court ("Notice"). The Notice, and an accompanying affidavit, were filed under seal. This post-trial Notice revealed Dr. Jordan's conduct and his South Dakota pretrial diversion deal to Judge Lacey Collier and Robert Ignasiak's defense team for the first time. The government requested that the Notice be kept under seal, in order to protect Dr. Jordan's privacy interests.
In the Notice, the government also argued that its prior failure to disclose the Arthur Jordan impeachment material did not violate Brady/Giglio, because the Ignasiak prosecutor had not personally known about Dr. Jordan's conduct, or the South Dakota pretrial diversion agreement, during the Ignasiak trial.
Judge Collier summarily granted the government's request to seal the Notice, despite defense opposition. The defense filed a New Trial Motion based on the alleged Brady/Giglio violations. Much of that litigation was conducted under seal. A few documents are publicly available, but they are heavily redacted. The defense lost its New Trial Motion as well.
The 11th Circuit did not decide whether the government's failure to discover and disclose Dr. Jordan's conduct, before or during trial, violated Brady/Giglio. But it did order the government's Notice unsealed and, through its opinion, disclosed Dr. Jordan's "criminal conduct" and pretrial diversion deal to the bench and bar. This was an admirable public service.
The 11th Circuit was clearly displeased by DOJ's effort to shield Dr. Jordan. As the Court succinctly put it:
"Perhaps ironically, by arguing that there was no Brady violation in this case because the AUSA prosecuting Ignasiak was unaware of Dr. Jordan’s history, it is actually the government that most persuasively highlights the value in unsealing the Notice. Indeed, should the Notice remain sealed, the significant likelihood is that in the next CSA prosecution in which Dr. Jordan testifies as an expert, both the prosecuting AUSA and the defense counsel will again be unaware of the highly relevant impeachment evidence contained in the Notice. And in that case, as in this one, should the truth ever come to light, the government could again point to its own ignorance and claim immunity from Brady error. Stated this way, we would have expected the government to condemn, rather than condone, such a problematic outcome."
In light of the 11th Circuit's opinion, several questions present themselves.
1. Who Protected Jordan? In other words, why did he get what looks on its face like a very favorable pretrial diversion deal from the South Dakota U.S. Attorney's Office? Who approved the deal and who within DOJ was informed about it? How long did the diversionary period last? Was it unusually short and, if so, why?
2. Who Revealed or Failed to Reveal Jordan's Conduct and Pretrial Diversion Deal? The Ignasiak prosecution team, from the Northern District of Florida, purportedly did not know about Dr. Jordan's "criminal conduct" or his South Dakota pretrial diversion agreement until after trial. Why not? The South Dakota U.S. Attorney's Office is part of the DOJ and the U.S. Attorney network, and Dr. Jordan is fairly well known as a government expert in pain clinic cases. It is difficult to imagine that South Dakota prosecutors were not aware of Dr. Jordan's ongoing role as a government expert. Assuming that they were aware, why didn't this raise any red flags, and who, if anyone, made the decision to quarantine this obvious Brady/Giglio material? If this is a cover-up, how high did it go? Was Jordan's pretrial diversion completed before Ignasiak's trial? Was it still in force when Jordan traveled, as he surely must have, to Pensacola for trial prep? Wouldn't Jordan need permission from pretrial services in order to travel to Pensacola, and wouldn't he have to tell pretrial service the purpose of his trip? Did the South Dakota U.S. Attorney's Office know of the trip and its purpose? If so, why didn't it notify N.D. Florida?
3. Why Did N.D. Florida Try to Seal and Suppress Dr. Jordan's "Criminal Conduct" and Pretrial Diversion Deal? As the 11th Circuit correctly noted, the government's effort to seal its own Notice had the effect of shielding Dr. Jordan's misconduct from other federal prosecutorial offices. Even assuming, as the government argued in Ignasiak, that an AUSA in one federal district has no obligation to obtain Brady/Giglio from a fellow AUSA in another federal district, what possible justification is there for the active effort to suppress Brady/Giglio material that occurred post-trial in Ignasiak?
4. What Subsequent Prosecutions Have Been Sullied by the Ignasiak Brady/Giglio Suppression? Did the Florida AUSAs ask Dr. Jordan about any upcoming trials Jordan may have had on tap with other U.S. Attorney Offices? If so, did the N.D. Florida make an attempt to tell the other offices about Dr. Jordan? It unquestionably had an ethical duty to do so. What has been done since the Ignasiak opinion to look into this issue?
5. Does the DOJ Really Believe that Brady/Giglio Material Known Only to a Federal Prosecutor in South Dakota is not Brady/Giglio Material in any Other Federal District? What duty does DOJ impose upon its federal prosecutors to tell prosecutors in other federal districts about Brady/Giglio problems with testifying agents and expert witnesses? If there is no policy in this area, why not?
6. How Could This Happen? More to the point, how could this happen post-Stevens? The government filed its Notice in Ignasiak six months after DOJ moved to dismiss the Stevens Indictment with prejudice and six months after Judge Emmet Sullivan ordered his own investigation of Brady/Giglio violations. Apparently AG Holder's message fell on some deaf ears. And I guess the N.D. Florida never thought to re-examine its position, after the DOJ issued, to much fanfare, the Ogden Memo in early 2010. Even now, after the 11th Circuit's pointed comments, the government has not voluntarily moved to unseal the Notice, or the motions and responses from the New Trial Motion, in the Ignasiak case. Why not?
It is extremely difficult for me to believe that either AG Eric Holder or Assistant AG Lanny Breuer knew about the Arthur Jordan issue prior to last month's Ignasiak opinion. And therein lies the problem. Even an Attorney General and Criminal Division Chief publicly committed to rooting out Brady/Giglio abuses could not prevent the Arthur Jordan debacle.
What is the real lesson here? That prosecutors can't be trusted to make their own judgments about what is or is not exculpatory and material under Brady/Giglio. Disclosure must be the norm.
DOJ has done everything in its power to prevent meaningful statutory reform of Fed.R.Crim.App.16 and federal criminal discovery procedures. DOJ says that it can be trusted to prevent Brady/Giglio violations from occurring. The Ted Stevens prosecution is Exhibit 1 in the argument against DOJ. Now we have Exhibit 2. His name is Dr. Arthur Jordan.
Thursday, February 9, 2012
Here is Judge Emmet Sullivan's Memorandum Opinion ordering unredacted release of Hank Schuelke's Report on prosecutorial misconduct in the Ted Stevens prosecution. Any comments or objections to the report by the attorneys involved are due by March 8 and will be published along with the Report.
Sunday, January 22, 2012
Last Friday the DC Circuit affirmed a district court's refusal to amend or modify Abramoff cooperator Michael Scanlon's plea agreement. Scanlon sought to amend or modify his plea agreement prior to sentencing in light of Skilling v. United States. He had pled guilty to conspiracy to commit: bribery, money and property mail and wire fraud, and honest services mail and wire fraud. The Court of Appeals, through Chief Judge Sentelle, held that federal courts are statutorily prohibited from modifying or amending plea agreements. Scanlon could have moved to withdraw his guilty plea, but chose not to do so. The case is: U.S. v. Scanlon (D.C. Circuit 2012) (courts are not authorized to modify or amend plea agreements).
Last Thursday, the Eleventh Circuit reversed a health care fraud/controlled substances conviction on Confrontation Clause grounds, because the trial court admitted five autopsy reports, over objection, without hearing testimony from the medical examiners who performed them. The case is: U.S. v. Ignasiak (11th Cir. 2012) (admission of autopsy report violates Confrontation Clause).