Monday, October 7, 2013

In the News & Around the Blogosphere

Sunday, October 6, 2013

A Stacked Deck? The SEC's Administrative Route

The New York Times' Gretchen Morgenson should be declared a national treasure. She continues to write about the financial crisis, and legal and regulatory issues related to the crisis, at a level far above most of her contemporaries. In today's New York Times she explains the administrative law process through which the SEC brings many of its enforcement actions against individuals. The Administrative Law Judges deciding the cases are SEC employees and appellate reversals are rare. Dodd-Frank expanded the kinds of cases that can be heard by the ALJs. All of this is known to the securities bar, but not to otherwise intelligent and informed lay readers, because hardly anyone ever writes about it. Morgenstern's story is here.

(wisenberg)

October 6, 2013 in Media, News, SEC, Securities | Permalink | Comments (0) | TrackBack (0)

Monday, September 23, 2013

In the News & Around the Blogosphere

Friday, June 28, 2013

In the News & Around the Blogosphere

Amanda Bronstad, Nat L.J., Report: Bribery Prosecutions Revive Following 2012 Lag

Walter Pavlo, Forbes, The High Cost Of Mounting A White-Collar Criminal Defense

Covington & Burling, Senior DOJ Criminal Division Official Rejoins Covington (Daniel Suleiman)

Steptoe, Former DOJ Deputy Assistant Attorney General Jason Weinstein Joins Steptoe

Hunton & Williams, Hunton & Williams LLP Adds Former Federal Prosecutor Laura Marshall to
White Collar Team, Expands Global Litigation Practice

Bernie Madoff Exhibit Opens at Crime Museum here

Wiliiam Shepherd (Chair, ABA Criminal Justice Section; Hollad and Knight, partner), recently testified before the U.S. House of Representatives Committee on the Judiciary Task Force on Overcriminalization.  See here and here.

DOJ Press Release, Former Congressman Richard G. Renzi Convicted of Extortion and Bribery in
Illegal Federal Land Swap

(esp)

June 28, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

The Wall Street Journal Takes Aim At Comey

by: Solomon L. Wisenberg

In what should be a surprise to no one, the Wall Street Journal editorial page today launched an attack on James Comey, President Obama's nominee to be the next FBI Director. The primary offenses? Comey's objection to the Bush Administration's illegal warrantless wiretapping and Comey's appointment of Patrick Fitzgerald as Special Counsel to investigate the Valerie Plame leak. The editorial is here. More commentary on this in the next few days.

Coming soon: Professor Podgor's analysis of the Second Circuit's opinion afffirming Raj Rajaratnam's conviction for insider trading violations.

(wisenberg)

June 24, 2013 in Current Affairs, Legal Ethics, Media, News, Plame Investigation, Prosecutions, Prosecutors, Statutes | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 18, 2013

Non-arrested Person Asserting Right to Silence Must Assert Constitution

by: Lawrence S. Goldman

In Salinas v. Texas, the Supreme Court in a bizarre, unrealistic 5-4 (or more precisely 3/2-4) decision announced yesterday seemed to rule that the pre-arrest silence of a person not in custody may be introduced at trial against that person and commented upon in summation by the prosecutor -- unless that person specifically invoked his Fifth Amendment privilege against self-incrimination.  Justice Thomas, joined by Justice Scalia, concurred only in the result, arguing that Griffin v. California, 380 U.S. 609 (1965), which prohibited prosecutorial use of a defendant's invocation of silence at trial, should not be extended to pre-arrest situations.

According to Justice Alito and two others (Chief Justice Roberts and Justice Kennedy), the individual had the responsibility to demonstrate at the time of his invocation of silence that it was based on his constitutional rights.  ("[I]t would have been a simple matter for him to say that he was not answering the officer's questions on Fifth Amendment grounds.")  Much like a trial lawyer, the defendant thus had the responsibility to make a proper contemporaneous record or forfeit any future legal claim.  ("A witness's constitutional right to refuse to answer questions depends on his reasons for doing so, and the courts need to know those reasons to evaluate the merits of a Fifth Amendment claim.")  Thus, the rules for making a record for a defendant represented by counsel in a courtroom have apparently been extended to an uncounseled layperson on the street or in a police station.

Salinas may affect the advice a white-collar lawyer (or any lawyer) might provide to a non-arrested client who the lawyers suspect might be approached by a law enforcement agent.  Instead of advising the client merely to decline to speak with the law enforcement official, the lawyer should also probably advise the client to explicitly state that his refusal is based on the Fifth (and perhaps also the Sixth) Amendment.  Indeed, perhaps white-collar lawyers should follow the lead of some other criminal lawyers and print the invocation of the Fifth (and Sixth) on the reverse side of their business cards.

(goldman) 

June 18, 2013 in News, Privileges | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 12, 2013

Shargel to Join Winston & Strawn

by: Lawrence S. Goldman

Gerald Shargel, perhaps the pre-eminent criminal defense lawyer in New York City, has left his solo practice to join the 900-lawyer firm of Winston & Strawn.  Shargel's move is embelmatic of two trends:  the expansion of white-collar and not so white-collar criminal defense practices of large firms and the exodus of criminal practioners from solo or small partnership practices.

Mr. Shargel's transition is a boon to Winston & Strawn but a loss to the independent, private defense bar that is diminishing in number, income and quality.

(goldman)

June 12, 2013 in Defense Counsel, News | Permalink | Comments (0) | TrackBack (0)

Friday, May 24, 2013

Did Lois Lerner Waive the Fifth?

by: Lawrence S. Goldman

Most witnesses with potential criminal exposure who are called to testify before Congressional hearings take the stand, with their lawyers behind them, and repeat the incantation "I respectfully decline to answer the question based on my Fifth Amendment privilege against self-incrimination," or some variation.  Occasionally, a witness insists on testifying in spite of a danger that his answers might incriminate him or, if in conflict with other witnesses' statements or other evidence, might lead to a perjury or obstruction prosecution.  One notable example is Roger Clemens, who chose to testify and, although ultimately acquitted, was indicted and lost millions of dollars in legal fees and endorsements.

Lois Lerner, an embattled Internal Revenue Service official called to testify before a Congressional hearing earlier this week, tried to have her cake and eat it too.  She made a brief opening statement declaring her innocence ("I have not done anything wrong.  I have not broken any laws.  I have not violated any I.R.S. rules and regulations, and I have not provided false information to this or any other Congressional committee.").  She then invoked her constitutional right not to testify.  Committee Chair Daryl Issa (R-Calif.) and other Congressmen claimed that, by her opening declaration, she had waived her privilege and therefore was required to answer the Committee's questions.

Some lawyers have criticized Ms. Lerner's counsel, William Taylor III, one of the most highly-respected criminal defense lawyers in the nation, for allowing Ms. Lerner to make an opening statement, claiming that at the very least that she placed herself at risk of waiving her constitutional privilege against self-incrimination.  See here.  Although the area of waiver of privilege is indeed murky, with cases going in different directions, I believe Ms. Lerner did not waive her right to silence by her unspecific denials.  As Miranda v. Arizona itself says, "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."  384 U.S. 436, 473-4, fn. 44.

Nonetheless, courts sometimes bend over backwards to "punish" what appears to them as gamesmanship.  Many years ago, a New York City Congressman, Mario Biaggi, in response to a "leak" disclosing he had invoked his privilege in the grand jury and refused to answer questions, declared publicly that he had cooperated fully and answered all the jury's questions -- a statement which was far from true -- and that he had instructed his attorneys to seek release of his testimony to prove it.  His attorneys moved for disclosure of testimony, no doubt expecting the motion to be denied.  (The United States Attorney also so moved.)  The district court, however, as later affirmed by the Court of Appeals, held that Biaggi had waived the privilege and ordered the release of his entire transcript.  In re Biaggi, 478 F.2d 489 (2d Cir. 1973).

Even though I believe that ultimately it will not be determined (or probably even litigated) that Ms. Lerner waived her privilege against self-incrimination, I wonder whether her brief declaration of innocence -- by itself unlikely to persuade anyone -- was worth the risk, however slight.  My guess -- pure guess -- is that the decision to allow her to make her brief opening statement was a compromise made between a careful lawyer and a client, like many I have represented, who adamantly desired to testify.  Of course, professional discretion would prevent Mr. Taylor from shifting any blame.

(goldman)

May 24, 2013 in Congress, Contempt, Current Affairs, Defense Counsel, News, Privileges | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 14, 2013

In the News & Around the Blogosphere

Monday, April 22, 2013

Will the "Public Safety Emergency Exception" Apply in White-Collar Cases?

by: Lawrence S. Goldman

The government decision to delay Miranda warnings, and also the first appearance before a judge and the assignment of counsel, for Dzhokhar Tsarnaev, the surviving alleged Boston Marathon bomber, was a tactical one, no doubt based largely on an evaluation that any admission Tsarnaev makes is unnecessary to a government case (eyewitnesses, an admission, videotapes, possession of explosives, flight, etc.) which appears to be overwhelming.

The broad "public safety emergency exception" which the government asserts is a questionable Department of Justice attempt to expand the narrow exception announced in New York v. Quarles, 467 U.S. 649 (1984).  The government's aggressive stance is based in part on a belief that Miranda does not prescribe a procedural requirement for police questioning, but is only a prerequisite for the admissibility at trial of statements made by a defendant.  Under such reasoning, government agents are free to violate the dictates of Miranda (and perhaps other constitutional rights) with no harm to their case except a return to the status quo ante.

Aggressive law enforcement tactics against criminal suspects accused of particular heinous crimes, such as terrorism, murder, kidnapping and large-scale drug dealing, gradually work their way into the general law enforcement toolbox.  Tactics used against drug dealers and organized crime figures, such as extensive electronic surveillance, undercover agents, forfeiture of assets and disallowance of attorneys' fees, and exceedingly high bail requests, for instance, are no longer uncommon in white collar cases.

I wonder whether the "public safety emergency exception" is so far off.  If it is acceptable under this exception to allow the government to disregard Miranda and Federal Rule of Criminal Procedure 5(a)(1)(A) (requiring agents to bring one arrested before a court "without necessary delay") in order ostensibly to prevent future terrorist crimes, will it also become acceptable to detain for 48 hours and question without Miranda warnings, for instance, those who have provided inside information about unknown persons to whom they might have provided such information in order to deter imminent or future insider trading or  those who have hacked computers about accomplices or others who might commit imminent or future computer crimes?

(goldman)

April 22, 2013 in Computer Crime, Current Affairs, Insider Trading, News, Privileges | Permalink | Comments (1) | TrackBack (0)

Thursday, April 11, 2013

Administrative Judge Reverses Suspension of Stevens Prosecutors

by: Lawrence S. Goldman

An administrative judge for the Merit Systems Protection Board has overturned the DOJ internal decision finding reckless misconduct for violating Brady obligations by two prosecutors of Senator Ted Stevens, Joseph Bottini and James Goeke, and ordering their suspensions.  See here

The administrative judge ruled that DOJ had violated its own disciplinary procedures which require a rank-and-file DOJ attorney in the Professional Misconduct Review Unit to review OPR findings and determine whether misconduct had occurred.  The career attorney who reviewed the OPR findings, Terrence Berg (now a federal district judge in Michigan), decided in favor of the prosecutors, but his ruling was reviewed and reversed by his superiors, who found that misconduct had occurred and suspensions were appropriate.  Review and reversal by the superiors, said the administrative judge, was improper procedurally, and the rank-and file attorney's decision was non-reviewable and final.

I lack sufficient familiarity with administrative law to opine whether this decision is wrong  (although Prof. Bennett L. Gershman has made a strong case that it is).  See here.  I recognize that prosecutors, like those they prosecute, are entitled to due process.  However, procedural infirmities aside, the actions of the prosecutors were clear enough and serious enough to warrant on the merits a finding of misconduct and a suspension.  See here.

I find it ironic that DOJ's finding of misconduct was (according to the administrative judge) based on DOJ's own procedural misconduct.  More seriously, however, I find extremely troubling the notion that a DOJ prosecutor's misconduct should be finally determined by a fellow career DOJ prosecutor.  Defense lawyers, for instance, are not entitled to have their alleged misconduct weighed by a fellow defense lawyer.

A prosecutor's alleged misconduct ideally should be determined by the appropriate state bar disciplinary committee, not a fellow prosecutor (or fellow prosecutors).  Of course, bar disciplinary committees, as several commentators have pointed out, have been extraordinarily hesitant to discipline prosecutors, especially with respect to Brady violations.

DOJ has the right to appeal to the three-judge Merit Systems Protection Board.  It will be interesting to see if it does.

(goldman)

April 11, 2013 in Judicial Opinions, Legal Ethics, News, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Friday, March 29, 2013

White Collar Criminal Law is Heating Up?

Two news items today highlight that the white collar area continues to be a key component of the criminal justice system.  In Atlanta we see a Fulton County Grand Jury issuing indictments for claims that an alleged test cheating scandal involves criminal activity. See Michael Winerip, NYTimes, Former Atlanta Schools Chief Is Charged in Testing Scandal

And the headline of the Tampa Bay Times is FBI Raid Signals End of Universal - an article describing the FBI raid of Universal Health Care.

(esp)

March 29, 2013 in Investigations, News, Searches | Permalink | Comments (1) | TrackBack (0)

Thursday, March 28, 2013

In the News & Around the Blogosphere

Sunday, March 17, 2013

In the News & Around the Blogosphere

Tuesday, February 5, 2013

In the News & Around the Blogopshere

David Oscar Markus, Southern District of Florida Blog, A Call to the Judiciary

Sherri Qualters, National Law Jrl, law.com, Lawyer gets home confinement for failing to report
boss's mortgage fraud

Texas State Securities Board, Foreign Notes Scammer Sentenced to 80 Years in State Prison

This Week From 500 Pearl Street

Casey Sullivan, Reuters (Chicago Tribune), Prominent NY prosecutor enters private practice

Thomson/Reuters, Money News, Former Goldman Director Seeks Reversal of Insider Trading
Conviction

Patricia Hurtado, Bloomberg News, Gupta Says in Appeal Trial Judge Hampered Defense Case

Todd Ruger & Jenne Greene, National Law Jrl, Securities bar predicts White will be 'tough sheriff' at SEC

Sherri Qualters, National Law Jrl, Alleged hacker's prosecutor defends case, stressing low
sentence sought

DOJ Press Release, Assistant Attorney General Lanny A. Breuer Announces Departure from Department of Justice

DOJ Press Release, BP Exploration and Production Inc. Pleads Guilty, Is Sentenced to Pay Record $4 Billion for Crimes Surrounding Deepwater Horizon Incident Court Accepts Guilty Plea to Felony
Manslaughter, Environmental Crimes and Obstruction of Congress Prior to Imposing Historic Sentence

DOJ Press Release, Former Chief Financial Officer of Stanford Financial Group Entities Sentenced to Prison for Role in Fraud Scheme and Obstruction 

Katie Couric Show, Cheating? Lying? Why Do We Do It?

Mike Scarcella, BLT Blog, Prosecutors Mounting New Case Against Blackwater Security Guards

(esp)

February 5, 2013 in News | Permalink | Comments (0) | TrackBack (0)

Monday, February 4, 2013

Irving R. Kaufman Memorial Securities Law Moot Court Competition

Announcement from the Fordham Law Moot Court Board

Each spring, Fordham University School of Law hosts the Irving R. Kaufman Memorial Securities Law Moot Court Competition. Held in honor of Chief Judge Kaufman, a Fordham Alumnus who served on the United States Court of Appeals for the Second Circuit, the Kaufman Competition has a rich tradition
of bringing together complex securities law issues, talented student advocates, and top legal minds.

This year’s Kaufman Competition will take place on March 22-24, 2013. The esteemed final round panel includes Judge Paul J. Kelly, Jr., of the Tenth Circuit; Judge Boyce F. Martin, Jr., of the Sixth Circuit; Judge Jane Richards Roth, of the Third Circuit; and Commissioner Troy A. Paredes, of
the United States Securities and Exchange Commission. The competition will focus on two issues that arise in the fallout of Ponzi schemes: whether the “stockbroker safe harbor” of the Bankruptcy Code applies to Ponzi scheme operators, and the application of SLUSA, which was recently granted cert by the Supreme Court.

We are currently soliciting practitioners and academics to judge oral argument rounds and grade competition briefs. No securities law experience is required to participate and CLE credit is available.

Information about the Kaufman Competition and an online Judge Registration Form is available on our website, www.law.fordham.edu/kaufman. Please contact Michael N. Fresco, Kaufman Editor, at KaufmanMC@law.fordham.edu or (561) 707-8328 with any questions.

(esp)

February 4, 2013 in Conferences, News, Scholarship, Securities | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2013

Casey Anthony Seeks Bankruptcy Protection for Legal Fees

by: Lawrence S. Goldman

Casey Anthony, who was acquitted of murdering her daughter Caylee Marie in 2011, has filed for bankruptcy in federal bankruptcy court in Florida.  She has listed approximate assets of $1,100 and debts of $800,000, including $500,000 due Jose Baez, one of her defense attorneys.  See here.  I was pleased to see no debt listed for my colleague and friend Cheney Mason, who as Baez' co-counsel, added gravitas, savvy and experience to Ms. Anthony's defense team.

It is not surprising for a criminal defense lawyer not to be paid a large part of the legal fees owed to her.  I venture that the average criminal defense lawyer is "beat" for some 10-20% of her fees.  And I do not know how much Baez actually did receive in fees, but I am sure nothing like the fees many white-collar lawyers and firms often receive for representation in criminal matters of institutions or individuals, even those who never get close to being indicted.  Of course, the Anthony case did provide Baez considerable fame.

(goldman)

January 28, 2013 in Attorney Fees, Current Affairs, Defense Counsel, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 2, 2013

New Head of Antitrust

Monday, December 3, 2012

In the News & Around the Blogosphere

Sunday, December 2, 2012

In the News & Around the Blogopshere