Sunday, June 3, 2012

Corporate Social Responsibility and Supply Chains Practice: Proposed Dodd-Frank Conflict Minerals Rules

Thursday, May 31, 2012

Should Edwards Be Retried?

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.

(esp)

May 31, 2012 in Judicial Opinions, News, Prosecutions, Prosecutors, Verdict | Permalink | Comments (1) | TrackBack (0)

Corporate Sentencing Statistics With Commentary

Some have been claiming that corporate prosecutions are down in numbers.  It certainly has not seemed that way, so I was glad to see the numbers, which demonstrate that corporate sentencings have been average over the past few years.

Lisa Rich, Director of the Office of Legislative and Policy Affairs at the United States Sentencing Commission provided the following corporate statistics for the recent Federal Sentencing Conference (although I have reworded some of what she provided): In FY 2011, there were 160 organizational cases and 151 pled guilty and 9 were convicted after jury trials. Probation was ordered in 111 cases and 31 had court ordered compliance/ethics programs. Three cases received credit for self-reporting and 44 received credit for cooperating with the government. But of the approximately 74 cases in FY2011 for which the Commission had Chapter 8 culpability information, there were no entities receiving full credit for having an effective compliance program. Not one of the 74 cases received credit under subsection (f).

These statistics do not reach the full corporate efforts by DOJ since they fail to include non-prosecution agreements or deferred prosecution agreements that have not gone through chapter 8.  So some bottom line observations: 1) if the government decides to prosecute a corporation - it has an incredibly high chance of success; 2) more emphasis needs to be put into teaching corporations how to operate an effective compliance program; 3) studies need to examine whether by using deferred and non-prosecution agreements the government is increasing prosecutions against corporate individuals (it certainly seems likely that this would be the case).

(esp)  

May 31, 2012 in Conferences, Deferred Prosecution Agreements, Government Reports, News, Prosecutions, Settlement, Think Tank Reports | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2012

In the News & Around the Blogosphere

David Voreacos & Greg Farrell, Bloomberg Businessweek, Wal-Mart Not Alone in Late Disclosure of Bribe Probe

Mike Scarcella, law.com, At odds in the Stevens case - Internal DOJ report shows fighting over punishment of prosecutors

Dan Ariely, WSJ, Why We Lie (hat tip to David Gerger)

Adam Liptak, NYTimes, A Tough Judge’s Proposal for Fairer Sentencing

Kristen Hays, Reuters, Judge says Enron's Skilling can seek new trial

Mike Scarcella, BLT Blog, DOJ Preparing to Release Internal Probe of Ted Stevens Case 

Grant McCool, Reuters, Gupta insider trading jury to hear Rajaratnam tapes; Walter Pavlo, Forbes, Prosecutors Say Rajat Gupta Close To Rajaratnam, But Does It Matter?; NYDaily News, Rajat Gupta's trial: Prosecutors play FBI wiretaps

Samuel Rubenfeld, WSJ, Former NY Lawmaker Bruno Faces New Corruption Charges

Robert Barnes, Washington Post, Supreme Court faces pressure to reconsider Citizens United ruling

AP, Washington Post, Jurors in John Edwards’ campaign corruption trial take weekend break, resume Monday

John May, The FCPA Blog, Facilitation: A Jury Question

Patricia Hurtado & Seth Stern, Bloomberg, U.S. Said to Start Probe of $2 Billion JPMorgan Loss

Michael Pollick, Herald Tribune, Marian Morgan's big mistake: Not taking a plea

Mike Scarcella, BLT Blog, Roger Clemens Presses Constitutional Dispute with Congress

 
(esp)

May 29, 2012 in News | Permalink | Comments (0) | TrackBack (0)

Friday, May 25, 2012

Government Dismisses Lindsey Manufacturing Case Appeal

The DOJ filed a motion to voluntarily dismiss (Download USA v Lindsey, etc., et al.___ecf.ca9.uscourts) in the U.S. Court of Appeals for the Ninth Circuit the FCPA case involving Lindsey Manufacturing Co., its CEO and CFO.  The government had filed an appeal on December 1, 2011 following an Order of District Judge Howard Martz, who ruled that the Lindsey prosecution had been tainted by a pervasive pattern of flagrant government misconduct. Contributing Blogger Solomon Wisenberg posted here excerpts from this initial Order. By today's dismissal, the government is finally dropping this prosecution and it also ends the efforts to get the company to forfeit $24 million.  

Attorney Jan Handzlik of Venable LLP stated, "This is a great day for the fair administration of justice.  We couldn't be happier for Keith, Steve and the 110 loyal, hard-working employees of Lindsey Manufacturing Company.  This dismissal further vindicates Dr. Lindsey's belief in our system of justice and in his innocence.  Keith and Steve were steadfast in their belief that the government had not played fair and that the truth would come out."

Congratulations also go to Janet Levine (CrowellMoring), who also represented an accused in this case.  Both Jan Handzlik and Janet Levine were the inaugural recipients of the White Collar Criminal Defense Award given at the NACDL White Collar Criminal Defense College at Stetson (see here).

(esp)

May 25, 2012 in FCPA, News, Prosecutions, Prosecutors, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, May 21, 2012

Clemens Daily Wrap-Up

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.

(wisenberg)

May 21, 2012 in Celebrities, Congress, Current Affairs, Judicial Opinions, Media, News, Obstruction, Perjury, Prosecutions, Prosecutors, Sports | Permalink | Comments (0) | TrackBack (0)

Saturday, May 19, 2012

Roger Clemens Trial - In Defense of the Judge

Sitting on the bench in a high profile case is not easy on any lawyer or the judge for that matter.  Everyone is scrutinizing your motions, your rulings, and even what you may be wearing. Co-blogger Solomon Wisenberg noted here how the judge has the ability to move the Clemens trial along.  This may be true - but I am not sure that he should.

Giving time for each attorney to state their objections, restate their objections, preserve the record, and yes, restate them even again, is important for everyone. Judge Walton is noted for giving defendants a fair trial - albeit he is also known for being tough if one is convicted. This is all the more reason to make sure that everything is properly on the record, should the defense be unsuccessful at trial.

I am firmly convinced that when prosecutors or defense counsel deliberately clog up a case with needless motions and objections, the jury may eventually catch on. And when prosecutors deliberately attempt to break the stride of the defense counsel or weaken the presentation with objections and distracting arguments, don't always assume it will benefit the prosecution. And keep in mind, that if there is a conviction the appellate court gets to read the entire record and they will have the opportunity to see the motions being made, the arguments supporting the motions, and they will have the opportunity to discern whether one side was deliberately wasting time with worthless motions.

So making sure everything is on the record, and that all arguments are heard is not such a bad thing.

(esp)

May 19, 2012 in Celebrities, News, Prosecutions, Prosecutors | Permalink | Comments (0) | TrackBack (0)

Thursday, May 17, 2012

Notes From The Roger Clemens Trial: The Jury Is Bored

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.

(wisenberg) 

May 17, 2012 in Current Affairs, Defense Counsel, Judicial Opinions, News, Obstruction, Perjury, Prosecutions, Prosecutors, Sports | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 15, 2012

Hardin Hijacks Cashman

Few things are more exhilarating to a criminal defense attorney than turning the government's witness into your own. This is exactly what Rusty Hardin did with Yankees GM and Senior VP Brian Cashman to close out last week's testimony in the Roger Clemens trial. It's not as if Cashman provided that much to the government in the first place. He testified on direct that the Yankees acquired Clemens from Toronto after the 1998 season. Clemens contemporaneously asked the Yankees to hire Toronto strength coach Brian McNamee. Cashman declined. There is no evidence that Clemens pressed the matter further at the time. Clemens was injury plagued in 1999, and had his worst ERA ever. After getting shelled in a 1999 playoff game at Fenway Park, Clemens asked Cashman to hire McNamee for the 2000 season. Cashman obliged. In 2000 Clemens rebounded with a great year.

On cross Hardin established that Clemens had experienced a very poor season with the Red Sox ten years previously, yet similarly rebounded the next season with a banner year. Hardin also had Cashman confirm that Clemens never complained when the Yankees ultimately fired McNamee. And Cashman smeared McNamee's character in response to Hardin's questions concerning the circumstances of McNamee's firing. Sprinkled throughout Cashman's responses to Hardin were glowing testaments to Clemens' work ethic, competitive spirit, decency, and sportsmanship.

At the end of the day, the Court accepted proposed questions for Cashman from the jury. One of them was as follows:

"Over the years that you've known Roger Clemens, is it fair to say you admire him as a great player and a leader?"

Judge Walton, who has been needlessly Talmudic in his approach to cross-examination questions veering "beyond the scope" of direct, nevertheless allowed the question, transposing it slightly. He asked Cashman:

"[O]ne of the jurors wants to know what your feelings are about Roger Clemens as a player and as a leader."

Here was Cashman's out of the ballpark response:

"One of the greatest players that I've ever seen, one of the best people, which goes to his leadership abilities. He, you know, he worked harder than everybody. He led by example. So a lot of times, you know, someone like Roger Clemens was given a great deal of ability. But not everybody honors that ability with the work ethic they put behind it. Roger did that.

And Roger at the same time was inclusive. You know despite his, you know, extreme accomplishments and his abilities and therefore celebrity that came from that, you know, his leadership is also shown in the fact that he, you know, treated the 25th man the same way he'd treat maybe the second best player on the team as well as the support staff. So, you know, there's a lot of aspects of being a leader. It's, you know, a true leader leads everybody, you know, the good ones and the bad ones. Roger led them all. So, he was a great player, a hard worker. His work ethic as well as his leadership ability was unquestionable."

(wisenberg)

May 15, 2012 in Celebrities, Congress, Current Affairs, News, Obstruction, Perjury, Sports | Permalink | Comments (0) | TrackBack (0)

Thursday, May 10, 2012

United States v. Rubashkin

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. 

(esp)

May 10, 2012 in Fraud, Judicial Opinions, News, Prosecutions, Sentencing | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 9, 2012

Judge Walton Keeps Out Prejudicial Material In Roger Clemens Trial

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.

(wisenberg) 

May 9, 2012 in Celebrities, Congress, Current Affairs, Judicial Opinions, Media, News, Obstruction, Perjury | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 2, 2012

In the News & Around the Blogosphere

Sunday, April 15, 2012

In the News & Around the Blogosphere

Tuesday, April 10, 2012

In the News & Around the Blogosphere

Wednesday, March 14, 2012

Another Deferred Prosecution - "NYCity Payroll Project Scandal" Company

Saturday, March 10, 2012

In the News & Around the Blogosphere

Wednesday, February 22, 2012

Strauss-Kahn Involved Again in Sex Case

Dominique Strauss-Kahn is once again in trouble with the law in relation to an investigation involving sexual activity.  Strauss-Kahn was detained overnight in Lille, France, for questioning in a French investigation related to an alleged prostitution ring that purportedly supplied women for sex parties with Strauss-Kahn in Brussels, Paris and Washington.

Strauss-Kahn contends that he had no reason to believe that the women at these parties were prostitutes.  His French lawyer bared that defense to French radio in December, "People are not always clothed at these parties.  I challenge you to tell the difference between a nude prostitute and a classy lady in the nude."  Reuters article, see here.  This lack of scienter defense ironically appears to be the converse of what many believed would have been Strauss-Kahn's defense had the New York case in which he was accused of sexual assault gone to trial.  In that case, it was expected that his defense would have been that he did believe that the woman in question was a prostitute.

The investigation, in which eight people have been charged, involves alleged misuse of corporate funds to pay for the services of the prostitutes.  Engaging prostitutes is not illegal in France (although it is in Washington), but if the investigators determine that Strauss-Kahn had sex with prostitutes he knew had been paid for out of company funds, he might be charged as a beneficiary of that misuse of funds.  Most likely, it will be difficult to prove that Strauss-Kahn, even if he were found to have known the women involved were prostitutes, knew how they were paid.

High-profile cases in other jurisdictions often affect prosecutorial priorities.  One wonders whether this case will lead American prosecutors to scrutinize corporate books to determine whether corporate funds have been used to supply prostitutes to customers, political figures and others.  I suspect that such payments (and consequent tax deductions as business expenses) are not wholly uncommon, at least for non-public businesses.  Any resulting cases, involving both sex and corporate corruption, are sure to draw media attention.

(goldman)

February 22, 2012 in Celebrities, Corruption, International, Investigations, Media, News, Tax | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2012

In the News & Around the Blogosphere

Tuesday, January 24, 2012

Paterno's Death May Affect Trial of Penn State Officials

Joe Paterno is dead, his legacy as one of the greatest coaches in the history of sports tarnished by his termination -- unjust, I believe -- on the grounds that he inappropriately failed to pursue vigorously an allegation of child sex abuse (see herehere and here).

Paterno's death and absence as a witness will likely have little or no effect on the trial of Jerry Sandusky, the former Penn State assistant coach who was the subject of the allegation reported to Paterno by a Penn State graduate assistant coach, Mike McQueary.  Paterno's only information about the Sandusky issues appears to have been the hearsay report by McQueary, and thus it is unlikely that he would have been a witness.

Paterno's unavailability, however, may have a considerable impact on the trials of Tim Curley, the former university athletic director, and Gary Schultz, a former university senior vice president, both of whom have been charged with failure to report the suspected child abuse and perjury.  Both have been charged with falsely testifying that McQueary, when he spoke with them, did not mention serious or criminal sexual conduct.  McQueary, whom the grand jury report (presumably written by the prosecutors) deemed "extremely credible," testified that he reported the specific act to both Curley and Schultz, and seemingly also to Paterno.  Paterno's grand jury testimony, however, apparently was that what McQueary related to him was far less specific, and thus more ambiguous.  Accordingly, while the grand jury report indicated that Paterno would be a corroborative witness for the prosecution in that he was told by McQueary of the alleged "sexual exploitation" and then reported what McQueary had said to Curley and Schultz, his testimony would apparently also have to an extent corroborated their defenses that McQueary was less explicit than he now claims.

In another highly-publicized investigation involving a former college sports coach, former Syracuse University assistant basketball coach Bernie Fine, it has been reported that two of the four men who had accused Fine of molesting them when they were children have admitted that they committed perjury in connection with the case.  One has admitted that he lied when he claimed Fine molested him.  The second, the only one whose allegations fall within the applicable criminal statute of limitations, while still claiming that abuse occurred, has admitted doctoring purportedly supporting emails.

The Fine situation is a reminder that not every allegation of child sexual abuse is true.  Indeed, in my experience, there is a far higher percentage of false accusations of sexual misconduct than of any other criminal activity.  Thus, such accusations should be scrutinized especially carefully before they are acted upon by law enforcement or others.

(goldman)

January 24, 2012 in Celebrities, Grand Jury, Investigations, News, Perjury, Sports | Permalink | Comments (0) | TrackBack (0)

Sunday, January 22, 2012

Cybercrime

The Center on National Security at Fordham Law has a news source that provides "weekly news round-up of articles, information, and opinions about cybersecurity and the laws, policies, and challenges - both domestic and global - that define the cyber world week to week."  For more information, see here.

(esp) 

January 22, 2012 in Computer Crime, News | Permalink | Comments (1) | TrackBack (0)