Thursday, July 12, 2012
Last month, in a thorough 64-page opinion, Southern District of New York Judge William Pauley ordered a new trial for three of four defendants convicted in what he described as "the largest tax fraud prosecution in U.S. history" because a juror, Catherine M. Conrad, had lied her way into being accepted as a juror. United States v. Daugerdas, et al., 09 Cr. 581.
There appears to be little question Ms. Conrad, a suspended lawyer, connived to make herself in her own word "marketable" so that she could have "an interesting trial experience" as a juror. In voir dire, she lied about her education, claiming the highest level she had reached was a B.A. when in fact she had a law degree. She concealed not only her membership in and suspension from the bar but her own criminal convictions -- for shoplifting, DWI, contempt and aggravated harassment -- as well as her husband's extensive criminal history, which included a seven-year prison stay. She made, according to the court, a "calculated, criminal decision to get on the jury."
At a post-trial hearing at which she was granted use immunity, Conrad stated that if the truth were known, "defense counsel would be wild to have me on the jury." In fact, however, Conrad turned out to be extremely biased against the defendants. In a congratulatory letter she sent to the prosecutors after the trial, she said she was "privileged to observe la creme de la creme -- KUDOS to you and your team." In that letter, she mentioned that she had fought against but ultimately had "thrown[n] in the towel" on a not guilty verdict on one of the counts concerning defendant David Parse. At the hearing, she testified that "most attorneys" are "career criminals." Two of the four convicted defendants were practicing lawyers; Parse was a non-practicing lawyer.
Judge Pauley, clearly upset by the need to retry a case which took three months, strongly urged the government to prosecute Conrad. Perhaps concerned that the government might feel that prosecuting her would be inconsistent with its opposition to a new trial, he added, "The prospect of preserving a tainted jury verdict should not temper the Government's resolve to call Conrad to account for her egregious conduct." Any prosecution of Conrad, however, obviously would have Kastigar obstacles because of her immunity.
The judge, following the Supreme Court's decision in McDonough Power v. Greenwood, 464 U.S. 548 (1984), found that in order to obtain a new trial, the moving party must "first demonstrate that a juror failed to answer honestly a material question on voir dire and then further show that a correct response would have provided a valid basis for a challenge for cause" (emphasis added). Apparently, even in a criminal case, the mere existence of a juror who deliberately lied her way onto the jury may not be sufficient to require a new trial. See United States v. Martha Stewart, 433 F.3d 273 (2d Cir. 2006). The McDonough test appears to be "If the juror hypothetically had answered truthfully, would her truthful answers have led to a challenge for cause?" Thus, unknown facts that might have affected her fitness to serve as a juror which would not in any case have been revealed by accurate responses to voir dire questioning presumably should not be considered.
In a lengthy analysis, mingling those hypothetical answers to questions asked during jury selection with, somewhat questionably, facts learned and impressions formed at the post-verdict hearing -- including Conrad's discovered dishonesty, bias and her animus to lawyers -- the court found that the McDonough criteria had been amply met. Accordingly, it ordered a new trial for all the convicted defendants -- except Parse, who the court ruled had "waived" his claim for a new trial since his attorneys knew or "with a modicum of diligence would have known" that Conrad's statements in jury selection were false and misleading and failed to disclose that knowledge to the court.
Judge Pauley felt that Parse's lawyers, the firm of Brune and Richard, knew or at least suspected (or alternatively should have known) that Conrad was an imposter certainly by the start of jury deliberations, but made a decision not to reveal their belief or suspicion to the court. The court was apparently affected by what seems to be a carefully-crafted, literally true but arguably misleading, statement in the lawyers' new trial motion that they were "prompted" by disclosure of Conrad's post-verdict letter to investigate and conduct records searches "in the wake of Conrad's . . . post-verdict letter." The court found that the motion contained "significant factual misstatements" and that its "clear implication" was to give the false impression that Parse's lawyers had no idea of Conrad's true identity until well after the verdict. In fact, as demonstrated in a later letter from the firm, in the firm's e-mails during trial, which were ordered by the court to be produced, and in testimony by the lawyers at a hearing, the firm apparently had concerns about and suspicion of Conrad's deception, initially at voir dire and later, after further record search revelations, during the judge's charge to the jury. A most graphic example was one lawyer's e-mail during the charge, "Jesus, I do think it's her."
The court believed that the attorneys' submission was designed to foreclose any government claim that their pre-verdict knowledge doomed their post-verdict motion on the grounds that they failed to act with "due diligence." The court found unconvincing the attorneys' claim that notwithstanding the similarities between the juror and the suspended lawyer discovered by electronic research -- name, home town, father's occupation, approximate age -- and the juror's use of previously unmentioned legal terms (such as respondeat superior) in jury notes she authored, the attorneys did not believe until after her letter to the government was disclosed that juror Conrad and suspended lawyer Conrad were the same person.
The court thus found that Parse's attorneys had "actionable intelligence" that Conrad was an imposter and that they had been required, but failed, to undertake "swift action" to bring the matter to the court's attention. The court apparently felt that the attorneys had attempted to "sandbag" it by remaining silent about the defect and only raising the issue when and if the trial did not conclude favorably, in effect providing them and their client with an "insurance policy against an unfavorable verdict." By his attorneys' conduct, the court ruled, Parse waived any error.
It may well be that during the trial the attorneys chose not to report their suspicions because they felt that Conrad, who appeared from web research to be potentially anti-government, would be a favorable juror for the defense, and they did not want to lose her. It may also be that, whatever the objective evidence that the juror and the suspended lawyer were one and the same might look like with hindsight, they actually thought that the juror and the suspended lawyer were different people since, as they claimed, they could not believe that the juror -- a lawyer -- would blatantly lie. Under either alternative, the court found, they had an obligation to share their knowledge with the court.
Some may argue that an attorney, in her duty of zealous representation of a client, may remain silent if she learns during jury selection that a juror misrepresented herself. Judge Pauley's contrary view is clear: "An attorney's duty to inform the court about suggested juror misconduct trumps all other professional obligations, including those owed a client." I agree. See New York Rules of Professional Conduct 3.3(b).
Some may also question whether Parse, the client, should suffer from his lawyer's purported misconduct or lack of diligence (of which he had no apparent knowledge). While generally a client is bound by a lawyer's strategic decision, and cannot cry foul if it backfires, Parse did suffer the same denial of a fair jury as the other defendants. Nonetheless, the court held that his attorneys' failure to report waived any objection by Parse, but granted new trials to the other three convicted defendants (whose lawyers apparently had no knowledge of Conrad's deception).
There are several ironies in this case: Parse, about whom, according to Conrad's letter to the prosecutors, the jurors "had qualms," is the only one whose conviction stands. Further, his attorneys were the ones responsible for investigating and presenting the motions which succeeded in a new trial for the others (who joined the motion), but not for him. And, lastly, if Conrad had told the truth at voir dire and revealed her suspension from the bar and her and her husband's criminal record, she undoubtedly would have been successfully challenged -- whether by cause or peremptory -- on the motion of the prosecution she so strongly favored, and not be the defense she despised.
Thursday, June 28, 2012
So let's see - President Obama wins on the health care decision with the Supreme Court, and later the same day the Attorney General is held in contempt of Congress. So which item ends up at the top of a blog. Was this political?
Don't overlook the Supreme Court's Alvarez decision today when reading about another important decision issued by the Court today - the one that upholds the Affordable Care Act. The Court's finding the Stolen Valor Act unconstitutional opens up some First Amendment arguments in the criminal sphere.
The test provided by the plurality decision is that "there must be a direct causal link between the restriction imposed and the injury to be prevented."
Justice Kennedy (joined by Roberts, Ginsburg, and Sotomayor) found that the respondent who lied about receiving a Congressional Medal of Honor, in direct contravention of a federal criminal statute - the Stolen Valor Act of 2005 (18 U.S.C. s 704) had a first amendment protection. The decision reminds us that there are certain content-based restrictions that are permitted -
"Among these categories are advocacy intended, and likely, to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct; so-called 'fighting words'; child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent" (citations and parentheticals from the decision omitted here)
This opinion states that "[t]hese categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules." But the Court also notes that there is no "general exception to the First Amendment for false statements." And specifically when considering defamation it says "that falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood."
That said, this opinion distinguishes statutes such as the false statement statute (s 1001); perjury (s 1623) and false representing that one is speaking on behalf of the Government (s 912).
Although this opinion stresses the importance of the military medals - as it should, it questions whether the "government's chosen restriction on the speech at issue [is] 'actually necessary ' to achieve its interest."
The key test used here - "There must be a direct causal link between the restriction imposed and the injury to be prevented."
The opinion ends by stating:
The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."
Justices Breyer and Kagan offer a concurrence that stresses that there is a less restrictive way to achieve the government's goal. They suggest using "intermediate scrutiny" here in evaluating this case, but also hold that "[t]he Government has provided no convincing explanation as to why a more finely tailored statute would not work."
Dissenting are Justices Alito, Scalia, and Thomas. They note that the statute is limited in several different ways. They argue that "false statements of fact merit no First Amendment protection in their own right" and that it is a narrow law.
Commentary to follow.
Thursday, June 21, 2012
The Supreme Court issued an opinion in Southern Union Co. v. United States. The company was convicted of a RCRA violation, which carries a penalty of a fine of not more than $50,000 for each day that there is a violation. Justice Sotomayor, writing the opinion for the Court, considered whether juries need to decide the fine given, in order to comply with the Court's prior decisions in Apprendi and Blakely that "reserves to juries the determination of any fact, other than the fact of a prior conviction, that increases a criminal defendant's maximum potential sentence."
The Court held that "where a fine is so insubstantial that the underlying offense is considered 'petty' the Sixth Amendment right of jury trial is not triggered and no Apprendi issue arises." But the Court then went on to say that "not all fines are insubstantial, and not all offenses punishable by fines are petty." The final ruling was that "Apprendi applies to the imposition of criminal fines." And it applied here.
A dissent by Justice Breyer, that was joined by Justices Kennedy and Alito, argued that "the Sixth Amendment permits a sentencing judge to determine sentencing facts - facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose." They believed that the Court's position would "lead to increased problems of unfairness in the administration of our criminal justice system." They discuss the existing high rate of plea agreements in the case.
The real question here is whether this decision will matter. As noted by the dissent, 97% of federal convictions result from guilty plea. But what went unnoticed is that very few companies - the object of many fines - go to trial. Often these cases are resolved with non-prosecution and deferred prosecution agreements. So will it really make any difference that juries can determine these fines, when the corporation in a post Arthur Andersen LLP world will seldom be going to trial.
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.